State Seal Calendar

Meeting Proceedings for January 15, 1998


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          1                          STATE OF FLORIDA
                             CONSTITUTION REVISION COMMISSION
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          5
                                    COMMISSION MEETING
          6

          7

          8

          9
              DATE:                   January 15, 1998
         10
              TIME:                   Commenced at 8:30 a.m.
         11                           Concluded at 6:30 p.m.

         12   PLACE:                  The Senate Chamber
                                      The Capitol
         13                           Tallahassee, Florida

         14   REPORTED BY:            KRISTEN L. BENTLEY
                                      JULIE L. DOHERTY, RPR
         15                           MONA L. WHIDDON
                                      Court Reporters
         16                           Division of Administrative Hearings
                                      The DeSoto Building
         17                           1230 Apalachee Parkway
                                      Tallahassee, Florida
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         19

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         25



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          1                             APPEARANCES

          2   W. DEXTER DOUGLASS, CHAIRMAN

          3   CARLOS ALFONSO (EXCUSED)
              CLARENCE E. ANTHONY
          4   ANTONIO L. ARGIZ (EXCUSED - PM SESSION)
              JUDGE THOMAS H. BARKDULL, JR.
          5   MARTHA WALTERS BARNETT (EXCUSED)
              PAT BARTON
          6   ROBERT M. BROCHIN
              THE HONORABLE ROBERT A. BUTTERWORTH (ABSENT - AM SESSION)
          7   KEN CONNOR
              CHRIS CORR
          8   SENATOR ANDER CRENSHAW
              VALERIE EVANS (EXCUSED - PM SESSION)
          9   MARILYN EVANS-JONES
              BARBARA WILLIAMS FORD-COATES
         10   ELLEN CATSMAN FREIDIN
              PAUL HAWKES (ABSENT - AM SESSION)
         11   WILLIAM CLAY HENDERSON
              THE HONORABLE TONI JENNINGS
         12   THE HONORABLE GERALD KOGAN
              DICK LANGLEY
         13   JOHN F. LOWNDES
              STANLEY MARSHALL
         14   JACINTA MATHIS
              JON LESTER MILLS
         15   FRANK MORSANI
              ROBERT LOWRY NABORS
         16   CARLOS PLANAS (EXCUSED - PM SESSION)
              JUDITH BYRNE RILEY
         17   KATHERINE FERNANDEZ RUNDLE
              SENATOR JIM SCOTT (EXCUSED)
         18   H. T. SMITH
              ALAN C. SUNDBERG
         19   JAMES HAROLD THOMPSON
              PAUL WEST (EXCUSED)
         20   JUDGE GERALD T. WETHERINGTON (EXCUSED)
              STEPHEN NEAL ZACK (EXCUSED)
         21
              IRA H. LEESFIELD (EXCUSED)
         22   LYRA BLIZZARD LOGAN (EXCUSED)

         23

         24

         25



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          1                             PROCEEDINGS

          2             (Quorum taken and recorded electronically.)

          3             SECRETARY BLANTON:  All unauthorized visitors, please

          4        leave the chamber.  All commissioners, indicate your

          5        presence; all commissioners, indicate your presence.

          6             CHAIRMAN DOUGLASS:  We need everybody to check in

          7        here.

          8             SECRETARY BLANTON:  Quorum call, quorum call, all

          9        commissioners indicate your presence.  A quorum present,

         10        Mr. Chairman.

         11             CHAIRMAN DOUGLASS:  If you will come to order,

         12        please.  Everybody take your seats and come to order,

         13        please.

         14             Will the commissioners please rise for the opening

         15        prayer given this morning by Reverend Penny Hunt, minister

         16        assistant at the Unity of Tallahassee Church, Reverend

         17        Hunt.

         18             REVEREND HUNT:  Commissioners, I'd like to take this

         19        opportunity to thank you for inviting me here today.  We

         20        send along words of encouragement and blessing for the

         21        important work being done here today.

         22             Would you please join me now in the moment of prayer.

         23        As we close our eyes and take in a deep breath, blow it

         24        out and relax and just for a moment set aside the worries

         25        or concerns of the day.  Begin appreciating a close



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          1        friend, smelling your favorite flower, seeing majestic

          2        colors in the sky at sunset.

          3             And with this deep sense of gratitude, we pray, sweet

          4        heavenly spirit, the creator of all life, we come together

          5        now as one body, one mind, one heart.  We give thanks in

          6        advance that today, through your loving guidance, great

          7        work will be accomplished here.  As these commissioners

          8        for the people function as a winning team, exploring and

          9        sharing ideas and opinions, arriving at just and fair

         10        conclusions based on a win/win principle, like the sounds

         11        of different musical instruments coming together forming a

         12        melody of humanity and bringing harmony right now into

         13        this room, into Tallahassee and this great state of

         14        Florida.

         15             This we affirm in the name and nature through the

         16        power of the living, loving spirit of truth, abiding

         17        within us all.  Amen.

         18             CHAIRMAN DOUGLASS:  Thank you very much, Reverend

         19        Hunt.

         20             This morning the pledge of allegiance will be led by

         21        students from Raa Middle School who are going to act as

         22        our pages today.  If you would come forward please, those

         23        of you in the back of the room, and we will identify you

         24        after the pledge.  Come stand up front so that you can

         25        lead this group in the pledge of allegiance to the flag.



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          1             We are very happy to have these students here.  They

          2        are Ann Moffit, Bry Byrd, Casey Blanton, Crystal Moore,

          3        Ashley Davis, Greg Horne, Jane Donaldson, Dominic

          4        Esposito, Kiana Ferguson, Mary Wood, Katie Gammon and

          5        their advisor is Cathy Corder.  If you would lead us in

          6        the pledge of allegiance to the flag.

          7             (Pledge of allegiance.)

          8             CHAIRMAN DOUGLASS:  Thank you, young men and women.

          9        We are delighted to have you with us and we hope you will

         10        be able to join us the full day.  The Reverend Hunt said

         11        we needed to be like an orchestra and so on.  Let's not

         12        have anybody off-key today and beating the drum at the

         13        wrong time and then we will move along a lot quicker.

         14             We are a little shorthanded today.  We are going to

         15        proceed.  I don't know how we can deal with this

         16        attendance matter, Commissioner Barkdull.  People drift in

         17        and out of the room, they don't show up on Monday and

         18        Tuesday, they are here and Thursday and Friday and this

         19        sort of thing.  Is there any way that the Rules Committee

         20        could perhaps address some way that we could entice people

         21        to be here on these sessions?

         22             COMMISSIONER BARKDULL:  I'll welcome any suggestions

         23        that members can make.  It has been a problem.  We did not

         24        have a legislative committee meeting, I understand,

         25        yesterday because there was no quorum present.  We



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          1        obviously are pretty shorthanded this morning.

          2             I just don't think it is fair to the people of

          3        Florida and your appointing authorities for people not to

          4        be here, but I'm really talking to those that are absent.

          5        Most of the ones, as I look around, are here pretty

          6        steadily.

          7             I don't know, Mr. Chairman.  We'll have to keep

          8        trying to get them here because surely it is the people's

          9        business and they should be.

         10             CHAIRMAN DOUGLASS:  Well, of course, there are

         11        unavoidable things that happen, we all know that, such as

         12        Commissioner Sundberg's very unfortunate situation and

         13        some others that I'm sure are equally justifiable.

         14             But one of the things that is noticed by the Chair is

         15        some people come in, stay a few minutes, leave, come back

         16        and then we have to take up something that they weren't

         17        here to be on.  And I don't think we should have to do

         18        that.  If you are here, you ought to be able to stay in

         19        the chamber when we are in session.  So I would ask all of

         20        you to please cooperate.

         21             I know the ones of you that are here are always here.

         22        I look around and I see pretty much the same faces and I

         23        may be talking on television, I hope, to some of the

         24        people that aren't here, and I won't identify them, but I

         25        think they can be identified as the ones who are



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          1        constantly not here.

          2             We now have one very loyal person who is a member who

          3        was an alternate, Commissioner Barton.  I don't think she

          4        has missed anything and we are delighted with that.

          5             Commissioner Barkdull, you may proceed, please, as

          6        the chairman of the rules.

          7             COMMISSIONER BARKDULL:  Thank you, Mr. Chairman, and

          8        members of the commission.  You have on your desk a purple

          9        packet.  This supplants the orange and the blue and the

         10        white that you had been using the previous days this week.

         11        You can either retain those for your personal file, if you

         12        want to, or discard them.  But everything that's on

         13        special order today, except some items that may not have

         14        been engrossed yet, are in this purple packet.

         15             Those that were considered by committees and had

         16        amendments and so forth late yesterday may appear on the

         17        calendar as if received.  And throughout the day, we

         18        anticipate that those, engrossing the amendments will take

         19        place and there will be a supplement as they come in or as

         20        we reach the items on the calendar.  If they are not

         21        available, of course, we will move to TP them hopefully

         22        for just later on in the day.

         23             Some announcements.  As we indicated yesterday, the

         24        Declaration of Rights Committee is scheduled to meet this

         25        afternoon at 6:15 in Room 309.  The Article V select



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          1        committee on costs is scheduled to meet today upon

          2        conclusion of today's session and we will have to announce

          3        a room.  They are also scheduled to meet on Monday,

          4        January 26 at 9:00 and the room will be announced.  And

          5        also, as we previously announced, the Finance and Tax

          6        Committee will meet on Tuesday, January 27, in the late

          7        afternoon, with the room to be announced.

          8             The calendar indicates that lunch will be provided

          9        today.  That is not correct.  You will be on your own for

         10        lunch, and that's at the request of some members that

         11        desire to eat in other facilities than the lounge because

         12        of today being Thursday.  They have something that's

         13        special they want to find.

         14             CHAIRMAN DOUGLASS:  Something special on Thursday,

         15        that's a new day for me.

         16             COMMISSIONER BARKDULL:  Well I understand that

         17        somebody fries up some pretty good chicken.

         18             CHAIRMAN DOUGLASS:  Chicken in the cafeteria, okay.

         19             COMMISSIONER BARKDULL:  I want to remind you again

         20        that we have the opportunity to withdraw proposals at the

         21        end of the session.  The proposed calendar for today is on

         22        your desk and I'd make a motion that it be approved and

         23        that we proceed with it.

         24             CHAIRMAN DOUGLASS:  All right.  There is a motion

         25        that we approve the calendar that has been provided by the



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          1        Rules Committee.  Without objection, it is adopted.

          2        Proceed, Commissioner Barkdull.

          3             COMMISSIONER BARKDULL:  That concludes the report.

          4        We can commence special order.

          5             CHAIRMAN DOUGLASS:  All right.  The first item on the

          6        special order today is committee substitute for Proposal

          7        170 by Commissioner Mills.  I don't know how it was

          8        reported out but, Commissioner Mills?

          9             COMMISSIONER MILLS:  Mr. Chairman, Commissioner

         10        Anthony is chairman of the committee out of which this

         11        came; he is not here yet.  He had an amendment he wanted

         12        to ensure that was offered and I'd prefer to defer it

         13        until he is here.

         14             CHAIRMAN DOUGLASS:  I don't think he is going to be

         15        here today.

         16             COMMISSIONER MILLS:  Well --

         17             CHAIRMAN DOUGLASS:  Have you got the amendment?

         18             COMMISSIONER MILLS:  No.  Mr. Chairman, while I'm up

         19        I'd like to say among the great things about this

         20        commission has been how many good things and how many

         21        major issues we have undertaken this week.  I'd like to

         22        take this opportunity to compliment you and the members of

         23        the commission that have done -- I, as presiding officer,

         24        sat through 600 special order calendars, I think, you

         25        know.



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          1             CHAIRMAN DOUGLASS:  Probably more than that.

          2             COMMISSIONER MILLS:  Probably more than that.  And in

          3        three days of special order calendars, we have undertaken

          4        more weighty issues with fair debate than many of us who

          5        were presiding officers for a lot of years have seen.  So

          6        I think those that are looking at this commission need to

          7        respect both the debate and the concern and the ability

          8        that you have been able to keep this group together

          9        through all that.

         10             Having said that, this one is not ready for prime

         11        time.  And I also will show my bona fides by saying the

         12        next one you get to this morning I'm going to withdraw.

         13             CHAIRMAN DOUGLASS:  Commissioner Mills, you are

         14        really moving this special order.  That's pretty good.

         15        Maybe that's why we are doing so well.  I appreciate those

         16        comments and I'm sure the commission does as well.  And I

         17        can respond to that by saying that my job has been made

         18        very easy by the quality of the debate.  Some of the

         19        people here that you have heard and I have heard are just

         20        outstanding in their concise presentations.

         21             I was teasing Commissioner Smith last night that he

         22        is so eloquent and yet short that we are going to assign

         23        him -- I don't mean in stature, I mean in length of his

         24        speeches -- we are going to assign him as the head of all

         25        of our speeches that we make outside the chamber.  I think



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          1        we would all agree with that.

          2             And I also see that our Commissioner Sundberg has

          3        returned.  And, Commissioner Sundberg, you need to know

          4        that everybody connected with the commission has been with

          5        you in thought and in prayer and spirit in this very

          6        difficult time for you.  And we know it was a great

          7        sacrifice for you to even be here, and we really

          8        appreciate it.

          9             And if you have anything you'd like to report on your

         10        situation, we would certainly be, like to hear it.

         11             (Off-the-record comment.)

         12             CHAIRMAN DOUGLASS:  Okay.  Well we really do

         13        appreciate you making the effort.  And you need to know

         14        that we are all with you and your family.

         15             Now, Commissioner Mills, you have moved to

         16        temporarily pass Proposal 170.  Without objection, it will

         17        be temporarily passed.

         18             We now will move to Proposal 174 by Commissioner

         19        Sundberg.  Would you read it, please?

         20             READING CLERK:  Proposal 174, a proposal to create

         21        Article IV, Section 14, Florida Constitution; providing

         22        for a public utilities commission established by the

         23        Legislature to be an executive agency that exercises

         24        quasi-legislative and quasi-judicial powers.

         25             CHAIRMAN DOUGLASS:  Commissioner Sundberg, we start



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          1        you right off upon your return.  If you would like to TP

          2        it until you get your wits together.

          3             COMMISSIONER SUNDBERG:  I'm lost.

          4             CHAIRMAN DOUGLASS:  Okay.  Without objection, we will

          5        TP this until later in the session this morning, or this

          6        afternoon.

          7             Proposal 2 is also by Commissioner Sundberg, which

          8        you may want to do the same thing with, sir?

          9             COMMISSIONER SUNDBERG:  Yes.

         10             CHAIRMAN DOUGLASS:  All right.  Proposal 2 is

         11        temporarily passed.

         12             I think, Commissioner Freidin, that makes you next up

         13        with Proposal No. 11.  Would you read that, please?

         14             READING CLERK:  Proposal 11, a proposal to revise

         15        Article I, Section 2, Florida Constitution; providing that

         16        persons may not be deprived of their rights because of

         17        gender.

         18             COMMISSIONER FREIDIN:  Mr. Chairman, I actually, I

         19        hate to do this because I know where, that you are trying

         20        to move things along, but I notice that the vice-chair of

         21        the Declaration of Rights Committee is not here yet.  I

         22        know that he wants to be involved in the debate on this

         23        issue.

         24             Actually, he had made a suggestion to me about a

         25        possible amendment that might resolve some of his concerns



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          1        and I have given that some thought and wanted to talk to

          2        him about it.  If you would entertain a motion to TP it

          3        only until he gets here and I can chat with him for a

          4        minute, I would appreciate it.

          5             CHAIRMAN DOUGLASS:  If you don't like his amendment,

          6        we ought to go ahead.

          7             (Laughter.)

          8             COMMISSIONER FREIDIN:  Well I don't want him to come

          9        back at me later.

         10             CHAIRMAN DOUGLASS:  Without objection, it will be

         11        temporarily passed.  Okay.  Commissioner Freidin, Proposal

         12        86, would you read it, please?

         13             READING CLERK:  Proposal 86, a proposal to create

         14        Article I, Section 26, Florida Constitution; guaranteeing

         15        equal rights of women and men throughout the state.

         16             CHAIRMAN DOUGLASS:  Commissioner Freidin.

         17             COMMISSIONER FREIDIN:  It is really the same subject

         18        and I'd also move to TP that.

         19             CHAIRMAN DOUGLASS:  Without objection, that's TP'd.

         20        All right.  Proposal 104 by Commissioner Evans.  Would you

         21        read the proposal, please?

         22             READING CLERK:  Proposal 104, a proposal to revise

         23        Article I, Florida Constitution; adding Section 26 to

         24        provide for parents' rights to direct the education of

         25        their children and to provide that the State has a



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          1        compelling interest in punishing child abuse.

          2             CHAIRMAN DOUGLASS:  You are recognized -- was this

          3        reported out of the committee on Declaration of Rights?

          4        How was it reported out, Mr. Chairman?

          5             (Off-the-record comment.)

          6             CHAIRMAN DOUGLASS:  Turn the mike on so I can hear

          7        you.

          8             COMMISSIONER SMITH:  Unfavorably, I think five to

          9        four.

         10             CHAIRMAN DOUGLASS:  All right.  You may proceed,

         11        Commissioner Evans.

         12             COMMISSIONER EVANS:  Not all rights are created

         13        equal.  There are legal rights, fundamental rights and

         14        absolute rights, not to mention marry -- entitlements and

         15        privileges.

         16             Different kinds of rights are afforded different

         17        levels of judicial protection.  The greatest protection is

         18        given to absolute rights but there are very few rights

         19        that are absolute.  The freedom of belief is one such

         20        absolute right, while the right to act in accordance with

         21        one's beliefs is only a fundamental right.  One may have

         22        an absolute right to believe in human sacrifice, but the

         23        right to carry out that belief is more limited.

         24             Fundamental rights' analysis under American law is

         25        applied both to the specific liberties listed in the First



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          1        Amendment to the United States Constitution, that is

          2        speech, religious conduct, association, press and petition

          3        for redress of grievances, and certain other rights which

          4        are fundamental to our way of life.  These include the

          5        right to marry, bear children, and direct the education of

          6        one's child.

          7             There are rights that are not fundamental, such as

          8        the right to own property or engage in business.  These

          9        rights, unlike the fundamental rights that I just listed,

         10        may be regulated by the State so long as the state's

         11        regulations are rationally directed toward some legitimate

         12        interest.  Thus, for example, the State is free to tax

         13        some businesses and not others, so long as the State's

         14        purpose in doing so is legitimate and rational.

         15             Parental rights have been repeatedly mentioned by the

         16        United States Supreme Court.  The Fourteenth Amendment has

         17        been interpreted to protect, as a liberty interest, the

         18        very nature of family life.  Parental rights have been

         19        held to be federal civil rights, superseding any state law

         20        to the contrary.

         21             The U.S. Supreme Court held in Parm versus J.R. in

         22        1979 that so deeply embedded in our traditions is the

         23        principle that parents speak for their minor children that

         24        the Constitution itself may compel a state to respect it.

         25             Thus, for example, in Pierce versus Society of



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          1        Sisters in 1925, the Supreme Court struck down laws

          2        banning private schools in Oregon, holding that the rights

          3        of parents who desire to send their children to school are

          4        the very essence of personal liberty and freedom.

          5             The parental right to guide one's child is a most

          6        substantial part of the liberty and freedom of the parent.

          7        The parental rights are fundamental rights -- that

          8        parental rights are fundamental rights has been recognized

          9        by unbroken history and tradition.  In Parm versus J.R. in

         10        1979, Chief Justice Warren Burger wrote for the majority,

         11        Our jurisprudence historically has reflected western

         12        civilization concepts of the family as a unit with broad

         13        parental authority over minor children.  Our cases have

         14        consistently followed that course.

         15             Our constitutional system long ago registered any

         16        notion that a child is the mere creature of the State and,

         17        on the contrary, asserted that parents generally have the

         18        right, coupled with the high duty, to recognize and

         19        prepare their children for additional obligations.

         20             The law's concept of the family rests on a

         21        presumption that parents possess what a child lacks in

         22        maturity, experience and capacity for judgment required

         23        for making life's difficult decisions.  More important,

         24        historically, it has recognized that natural bonds of

         25        affectation lead parents to act in the best interests of



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          1        their children.

          2             Chief Justice Burger continued, As with so many other

          3        legal presumptions, experience and reality may rebut what

          4        the law accepts as a starting point.  The incident of

          5        child neglect and abuse cases attest to this.  That some

          6        parents may at times be acting against the interests of

          7        their children creates a basis for caution but it is

          8        hardly a reason to discard wholesale those pages of human

          9        experience that teach that parents generally do act in the

         10        child's best interest.

         11             The status notion that governmental powers should

         12        supersede parental authority in all cases because some

         13        parents abuse and neglect children is repugnant to

         14        American tradition.  And again, those are the words of

         15        Chief Justice Warren Burger.

         16             The Ninth Amendment to the U.S. Constitution provides

         17        a solid textual basis for the protection of those rights

         18        which reach back to time immemorial.  The Ninth Amendment

         19        says, The enumeration in the Constitution of certain

         20        rights shall not be construed to deny or disparage others

         21        retained by the people.

         22             And indeed this same language is located in Article

         23        I, Section 1, of the Florida Constitution.  And I quote

         24        that, that section, That enunciation herein of certain

         25        rights shall not be construed to deny or impair others



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          1        retained by the people.

          2             Parental rights are exactly the kind of unenumerated

          3        rights which the Ninth Amendment was designed to cover.

          4        It is undeniable that parental rights were strongly

          5        protected at common law.  Blackstone writes that the most

          6        universal relation in nature is that between parent and

          7        child.

          8             The United States Supreme Court in Griswald versus

          9        Connecticut in 1965 interpreted the Ninth Amendment to

         10        protect the natural order and prerogatives of the family.

         11        Thus both history and human nature demonstrate that

         12        parental rights are fundamental in the truest sense.

         13        Foundational to society itself.

         14             The Ninth Amendment incorporates this liberty into

         15        the Bill of Rights, applicable to the states through the

         16        due process and equal protection clauses of the Fourteenth

         17        Amendment.  And obviously, applicable to Florida through

         18        that way and additionally through our own express

         19        provision in Article I, Section 1.

         20             Now, if the fact that parental rights are fundamental

         21        is so obviously expressed and provided both in federal and

         22        Florida law, why then do we need this amendment?  It is

         23        because state courts at every level and lower federal

         24        courts are more and more elevating the power of the state

         25        to supersede the wisdom of the parents.



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          1             These courts need to be reminded unequivocally that

          2        the standard of review for fundamental rights, which they

          3        must apply, is the compelling interest test also know as

          4        the strict scrutiny standard.  That is, the court must

          5        require the state to prove that its regulation and

          6        infringement of parental rights is essential and that it

          7        is the least restrictive means of fulfilling the state's

          8        compelling interest.

          9             I'll give you a few examples of what happens when

         10        other courts ignore the United States Supreme Court.

         11        Excuse me a minute.  I wasn't quite expecting the eighth

         12        on the list to be up first.

         13             CHAIRMAN DOUGLASS:  The last shall be first.

         14             COMMISSIONER EVANS:  Right.  Okay.  In Pennsylvania,

         15        1996, on March 19th, 59 sixth graders in Pennsylvania's

         16        East Stroudsburg Area School District were forced to strip

         17        to their underwear and submit to a full genital

         18        examination, including digital penetration.  Many of these

         19        11-year-old girls objected to the exam and asked

         20        permission to call their parents.  School officials

         21        ridiculed the students, calling them babies, and refusing

         22        to allow them to contact their parents.  A nurse blockaded

         23        the door preventing the girls from leaving.  The exam left

         24        many of the children devastated and feeling violated.

         25             School officials defended their actions by arguing



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          1        that they sent notices to the parents; however, the

          2        notices never indicated that a gynecological exam would be

          3        performed.  At least one parent objected in writing to the

          4        exam, but her child, who is now experiencing nightmares

          5        from the incident, was forced to strip and submit to the

          6        examination.

          7             CHAIRMAN DOUGLASS:  Commissioner, I hate to interrupt

          8        you, but I don't believe this is germane to your proposal,

          9        unless you can relate it in some way.

         10             COMMISSIONER EVANS:  I will be relating it.

         11             CHAIRMAN DOUGLASS:  I think your graphic descriptions

         12        probably are not helping your cause here, as it relates to

         13        the proposed amendment.  I just suggest that, I won't call

         14        you out of order, however.

         15             COMMISSIONER EVANS:  Thank you.  The point being is

         16        an attitude that is becoming pervasive in our society.

         17        And the pediatrician summed up the school's position by

         18        saying that even a parent doesn't have a right to say what

         19        is appropriate for a physician to do when conducting an

         20        exam.

         21             In that light, I could give you much more explicit

         22        details of things that are going on in the name of sex

         23        education and how parents are not allowed and courts do

         24        not allow them to have any say-so in what goes on.  I

         25        won't give those details, in light of that comment, in the



                                                                          21

          1        First Circuit case 1995 in Chelmsford, Massachusetts, but

          2        these details, which are even worse than the ones that I

          3        just said, the Court of Appeals, Federal Court of Appeals

          4        held that the parents' rights were not violated because

          5        the actions were not sufficiently conscience shocking.

          6        And I wish I could give you those details; I do find them

          7        shocking.  I guess I could read them if the court says

          8        they are not though.

          9             In 1980, the Supreme Court in Washington, the State

         10        Supreme Court, ruled that it was not a violation of

         11        constitutional parents' rights to remove a child from the

         12        home because she objected to her parents' reasonable

         13        rules.  The parents had grounded their eighth grade

         14        daughter because she wanted to smoke marijuana and sleep

         15        with her boyfriend.

         16             The Supreme Court found that it was reasonably within

         17        the lower court's jurisdiction to remove the girl from her

         18        family home.  No strict standard was applied.  The

         19        parents' rights were completely terminated for simply

         20        grounding their daughter to stop her from using illegal

         21        drugs and engaging in elicit sex.

         22             Now another issue that parents are concerned about is

         23        directing the education of their children.  There are two

         24        companion cases in the state of Michigan in 1993.  And one

         25        of them, the DeJon [phonetic] case, the Michigan Supreme



                                                                          22

          1        Court held that parents who home educate their children

          2        due to their religious convictions have a fundamental

          3        right protected by the First Amendment.

          4             However, in the companion case, Bennett, a family

          5        challenged the same law that the DeJon family challenged,

          6        and the Supreme Court said that they did not have the

          7        right to direct the education of their children because

          8        they were not Christian.  So the strict standard scrutiny

          9        applied to the Christian parents but did not apply to the

         10        secular parents.  In other words, parental rights of

         11        religious parents are protected but parental rights of

         12        secular parents are not.

         13             In another vein, Second Circuit 1996, parents

         14        objected on moral grounds to a mandatory community service

         15        graduation requirement and the court held that they did

         16        not have the fundamental right to direct the education of

         17        their children because their moral concerns were purely

         18        secular, and not religious in nature.

         19             Going to the medical side of the question, we have

         20        the highest court in New York ruling in 1972 that a

         21        15-year-old boy, Kevin, who had elephant man disease,

         22        which caused a large fold of skin to grow over the right

         23        side of his face, his mother wanted him to wait until he

         24        turned 21 before permitting any surgery.  The doctors

         25        testified that the surgery was very risky, offered no cure



                                                                          23

          1        and said that waiting would decrease, not increase, the

          2        risk.

          3             Even so, the judge overruled the mother's objections,

          4        declared Kevin a neglected child, and ordered the series

          5        of operations.

          6             Now what about in Florida?  Obviously the trend is

          7        toward eroding parental rights in the country and we see

          8        the same thing in Florida.  Our basic liberties are most

          9        vulnerable when the government's intentions are most

         10        benevolent.

         11             The Fourth Amendment, the search and seizure

         12        amendment, protects the home.

         13             CHAIRMAN DOUGLASS:  Commissioner, Barkdull, do you

         14        rise?

         15             COMMISSIONER BARKDULL:  Yes, to ask Commissioner

         16        Evans a question.

         17             CHAIRMAN DOUGLASS:  All right.

         18             COMMISSIONER BARKDULL:  Commissioner Evans, how much

         19        longer do you anticipate this presentation will take?

         20             COMMISSIONER EVANS:  If you are suggesting that

         21        perhaps what I'm saying is not worthy of listening to, we

         22        can take the vote right now.

         23             COMMISSIONER BARKDULL:  That's not what I am

         24        suggesting.  The reason I am asking, making the inquiry is

         25        there are several members on the floor that have indicated



                                                                          24

          1        they may make a motion to limit debate and before that was

          2        done, I asked them to give me the opportunity to make an

          3        inquiry of you of how much longer you expected it to go.

          4             COMMISSIONER EVANS:  I didn't time myself.  I don't

          5        know how long other people will take either.  I might take

          6        five more minutes.

          7             COMMISSIONER BARKDULL:  All right, thank you.

          8             COMMISSIONER EVANS:  I will give an explanation.  In

          9        the Declaration of Rights Committee, there were some

         10        people who did not understand all of these standards and I

         11        felt it incumbent to explain that since not everyone is an

         12        attorney and perhaps since not everyone operates in the

         13        realm of constitutional law, I felt it necessary, based on

         14        other questions, just to educate along those standards

         15        because it is critical to this amendment.

         16             And I'm sorry that there are certain people in here

         17        who are offended by that.

         18             CHAIRMAN DOUGLASS:  Commissioner Evans, no one is

         19        offended by your proposal or your comments.  The issue

         20        that was raised by those who raised it is the length of

         21        them, because they far exceed what others have used on

         22        other subjects.  Certainly, I think, if you want to

         23        influence people you should try to make it a little more

         24        succinct, but we are very happy to listen to everything

         25        you have got to say; nobody is offended by what you say.



                                                                          25

          1             I suggested to you that some of the things might be

          2        better said someplace other than on the floor, and you

          3        honored that.  And I think what is being asked is that you

          4        try to wind up as succinctly as you could, not anything

          5        about what you are saying.

          6             COMMISSIONER EVANS:  Yes.  And I do hope that the

          7        commission is equally concerned when we get to some other

          8        issues that will take a great deal of time on the other

          9        side of the coin.

         10             Okay.  The Fourth Amendment.  Social workers in

         11        Florida generally believe that the Fourth Amendment does

         12        not apply to them.  On the basis of an anonymous tip, and

         13        absent exigent circumstances, they can show up at your

         14        door, and they do, demanding entrance.  If the parent

         15        refuses, they will go back, get a police officer, come

         16        back and demand entrance.

         17             So the parent is now faced with a very difficult

         18        choice; you either let them in, and make informal

         19        statements to the social worker, raising the risk of

         20        subsequent criminal conviction, or you refuse to talk,

         21        even when the social worker tells you and threatens to

         22        take away the child unless you cooperate.  Parents are

         23        faced with a Hobson's choice; give up their constitutional

         24        rights or the children.  And very few insist on their

         25        rights.



                                                                          26

          1             They insist that the Fourth Amendment search and

          2        seizure laws do not apply to them because they cannot find

          3        a judge to issue a search warrant.  Senate committee

          4        hearings were held recently here in Florida on this issue.

          5        One circuit judge said that his circuit provided the duty

          6        judges with beepers and telephones so that they would be

          7        available at all hours to issue all kinds of search

          8        warrants.  I suspect that this is true in all circuits.

          9             We all heard the poignant accounts of the destruction

         10        of families in Florida caused by the unlawful taking of

         11        children by the State.  We must send a strong message that

         12        these unlawful takings must stop.  Politically-inspired

         13        intrusions into family life must be limited for two

         14        reasons.  First, Florida's families must be protected from

         15        popular passions and passing fads.

         16             Outcomes-based education is all the rage in

         17        educational circles now.  We saw it yesterday in our

         18        Education Committee meetings and the Goals 2000

         19        presentation.

         20             I attended a three-day seminar in Orlando last

         21        January called World Class Academy.  The Academy in

         22        central Florida is dedicated to training 1,000 business

         23        people in 1,000 days into the tenets of outcomes-based

         24        education.  It may be the rage, but it should not override

         25        the parents' right to direct the education of their child.



                                                                          27

          1        Especially when so many of the previous educational fads

          2        have been discarded in the dust heap of history.

          3             Second, families must be protected from those who see

          4        the next generation as a means of power.  The hand that

          5        rocks the cradle rules the world is an accurate statement

          6        of politics.

          7             Now, medical care in Florida.  This amendment will

          8        change nothing in Florida regarding medical care for minor

          9        children.  Currently if doctors believe that a blood

         10        transfusion is necessary to save the life of a child, all

         11        the doctors have to do is take their case to a judge, they

         12        get an immediate hearing that day, they present their

         13        evidence that they have a compelling interest in saving

         14        the life of this child and that the blood transfusion is

         15        the least restrictive means of saving that child's life

         16        and they will win on the hearing, the child gets the blood

         17        transfusion.  So this amendment is adding nothing new to

         18        the existing law.

         19             Now the concern expressed in the committee of course

         20        is what does this amendment do to the T.W. case, parental

         21        consent to a minor child's abortion.  Now I don't desire,

         22        at all, to rehash yesterday.  That's why I wanted

         23        yesterday's to come before mine.  That's not what this

         24        amendment is about.  The purpose of this amendment is not

         25        to give us a second bite at that apple.



                                                                          28

          1             But I did go back and spend a great deal more time in

          2        study and reflection and I believe that I have a more

          3        definitive answer than I had at the committee meeting.

          4        The answer is that that amendment does nothing to the T.W.

          5        holding.

          6             The relevant facts of that case are as follows:

          7        First, the court knew that the privacy clause contained a

          8        no express standard of review.  The court used history to

          9        determine that privacy was a fundamental right, and it

         10        applied the compelling interest standard.

         11             Secondly, the court stated that it recognized that an

         12        individual's interest in preserving the family unit in

         13        raising children is fundamental.  However, the court chose

         14        to apply a lower standard of review stating that the

         15        State's interest in protecting minors and in preserving

         16        family unity are worthy objectives, but that Florida does

         17        not recognize these two interests as being sufficiently

         18        compelling to justify a parental consent requirement.

         19             Knowing that the people of the state of Florida

         20        incorporated the Ninth Amendment into Article I, Section

         21        1, of our Constitution, and knowing that because parental

         22        rights are federal civil rights thereby superseding any

         23        state law to the contrary, the majority still reduced

         24        parental rights to worthy objectives.

         25             Thirdly, the court knew that the T.W. case should



                                                                          29

          1        have been decided legally on the disability of nonage,

          2        including the inability to contract.  The dissent pointed

          3        this out.  The court knew that Section 23 did not remove

          4        the disability of nonage.

          5             CHAIRMAN DOUGLASS:  Commissioner Barkdull.

          6             COMMISSIONER BARKDULL:  Mr. Chairman, this is the

          7        first time I have done this since we have been in the

          8        session, but I'm going to do it today.  Our rules say ten

          9        minutes.  The speaker has gone over that.  I'm going to

         10        call a point of order.  She will have five minutes to

         11        close on the debate, in addition to the time that's

         12        already been used.

         13             CHAIRMAN DOUGLASS:  The point of order is well taken.

         14        You have five minutes to close when we complete the

         15        debate.  Who wants to be recognized on the proposal?

         16        Commissioner Smith.

         17             COMMISSIONER SMITH:  Mr. Chairman, are we giving each

         18        of the members a certain amount of time?

         19             CHAIRMAN DOUGLASS:  No, the rules say that you get

         20        ten minutes to debate.  We haven't really enforced that,

         21        we haven't really had to, because nobody has done it.

         22             COMMISSIONER SMITH:  Can I give her my time?

         23             CHAIRMAN DOUGLASS:  If we are going to get into a

         24        hassle on this, proceed.  I'll rule the other way, I'll

         25        say we won't enforce the rules.



                                                                          30

          1             COMMISSIONER SMITH:  No, it's just that I believe

          2        that we need to try to continue, as you have been doing,

          3        Mr. Chair, fostering the collegiality with regard to these

          4        very tough issues.  And I think that with regard to about

          5        four or five issues yesterday, no one said a word.  We

          6        said, we have enough information, and we voted.  And I

          7        think the collegiality of this body is much more important

          8        than a strict enforcement of the rules.  And I implore you

          9        to allow her to speak.

         10             CHAIRMAN DOUGLASS:  Well I'll certainly not enforce

         11        the rules.  Everybody be seated.  Proceed.

         12             COMMISSIONER EVANS:  And I do believe it will be less

         13        than five, but thank you, Commissioner Smith.

         14             Okay.  The court knew that Section 23 did not remove

         15        the disability of nonage, there is no language that so

         16        states.  The court knew that the principles of Roe vs.

         17        Wade did not remove the disability of nonage and that

         18        Section 23 effectively codified Roe vs. Wade.  The court

         19        knew that absent an enabling statute, a minor does not

         20        have the capacity to consent to an abortion because of the

         21        common law and long-recognized disability of minors

         22        because of nonage.

         23             The court knew that Section 743.065 of the Florida

         24        Statutes, 1987, provided for certain circumstances whereby

         25        an unwed pregnant minor and an unwed minor mother could



                                                                          31

          1        consent to certain medical or surgical care or services,

          2        but that the Legislature expressly and intentionally left

          3        out abortion decisions.  The court knew that the Florida

          4        Constitution recognizes the disability of nonage in

          5        Article III, Section 11-a-17.

          6             And in spite of all this knowledge, the majority

          7        decided to remove the disability of nonage judicially.

          8        Now, this amendment, as I said, changes none of that

          9        because this amendment merely codifies everything that we

         10        already have.  What will happen, I suspect, if this

         11        amendment passes is that nothing will happen as far as the

         12        T.W. case is concerned.  At least nothing will happen

         13        until the very nature of the court is changed, if that

         14        happens.

         15             Now has that changed?  I don't know.  You'll have to

         16        take a look at the world view of the Supreme Court members

         17        as they are now, compared to what they were in the T.W.

         18        case.  I can't tell you what that might be when the court

         19        changes again in another five or ten years.

         20             But when you have got the court having no historical

         21        or legal basis to support the decision, basically the

         22        decision turns on the moral, religious or political

         23        beliefs of the court.  And that's what I mean by the world

         24        view.

         25             So I'm not going to stand here and say and predict



                                                                          32

          1        what certain justices might do.  I think you can analyze

          2        that yourselves.  But my position is that all of the

          3        information contained in this amendment was 100 percent

          4        available to the court in the T.W. case and therefore this

          5        amendment will change nothing.

          6             So if you are inclined to vote for this amendment but

          7        for the possible harm to T.W., I submit that that is not

          8        an issue.  In the meantime, don't allow further erosion to

          9        all other areas of parental rights.  And I sincerely

         10        appreciate you giving me the time to educate the

         11        nonlawyers on the scrutiny standards and the levels of

         12        rights.  Thank you very much.

         13             CHAIRMAN DOUGLASS:  Thank you, Commissioner Evans.

         14        Commissioner Brochin.

         15             COMMISSIONER BROCHIN:  I have a question.

         16             CHAIRMAN DOUGLASS:  Yes.  Yield to a question?  She

         17        yields.

         18             COMMISSIONER EVANS:  Yes, very gratefully.

         19             COMMISSIONER BROCHIN:  First of all, I appreciate you

         20        bringing to the floor issues that deal with the education

         21        of Florida's children.  I find that to be one of the most

         22        significant areas that we can discuss here.  And I

         23        appreciate, although not agreeing with, I appreciate very

         24        much your comments and presentation.

         25             Your proposal, does it confer the fundamental right



                                                                          33

          1        on the parents or on the children?

          2             COMMISSIONER EVANS:  I'm not sure that I understand

          3        your question.  The fundamental right is that parents have

          4        the right to direct the upbringing of their children.

          5        This has been since the parent-child relationship began.

          6             COMMISSIONER BROCHIN:  So the fundamental right

          7        created by your amendment would go to the parents of the

          8        children?

          9             COMMISSIONER EVANS:  I guess the answer is yes.  But

         10        it is not created by this amendment, it was before this

         11        country was created that this right existed.  It is

         12        putting it into our Constitution expressly what has always

         13        been a part of Florida and U.S. law and natural law well

         14        before that, that parents have the right.  I don't

         15        understand how the child could have the right to expect

         16        their parents to do it.  Is that what you mean?

         17             COMMISSIONER BROCHIN:  No, it was actually a little

         18        bit simpler than that.  I wanted to understand whose

         19        fundamental right was being conferred here with this

         20        amendment.

         21             COMMISSIONER EVANS:  Parents.

         22             COMMISSIONER BROCHIN:  And I understand it to be the

         23        parents.  And you commented that parental rights have been

         24        eroded by the state courts and I assume vis-a-vis

         25        education.  I have found precious little actually reported



                                                                          34

          1        decisions in Florida about education at all.  But I wonder

          2        do you know of any that the courts in this state have

          3        actually eroded any rights vis-a-vis education and

          4        parental rights to guide that education?

          5             COMMISSIONER EVANS:  As far as the courts are

          6        concerned I don't know of additional cases that made it up

          7        to the appellate level so that you could research that

          8        issue.  And the hope is that we won't have to be faced

          9        with that because we have got this expressed, even though

         10        we have had it eroded in other areas.

         11             Now I can tell you an example of cases where parents

         12        have approached the schools, the schools have turned them

         13        down in getting rid of whatever it is that they are

         14        disagreeing with, whether it be taking outcomes-based

         15        education tests or being forced into special programs that

         16        they did not want their children put into.

         17             I mean, I can -- being a home school mom, I get calls

         18        like this all the time.  My name somehow got on the

         19        Internet as being a person to call about home school

         20        questions.  And they call me all the time saying, How can

         21        I fight the schools?  How can I get my child out of, say,

         22        an IDEA program?  How can I do this?  I didn't know what I

         23        was signing, they didn't send me any explanation.  They

         24        didn't have face-to-face conferences, like the law

         25        requires.



                                                                          35

          1             So, you know, there are situations where the State,

          2        through the schools, are pulling parents away from their

          3        children and parents are objecting.  And so the legal

          4        recourse needs to be clear or the standard, rather, needs

          5        to be clear.  This is a standard, not --

          6             COMMISSIONER BROCHIN:  So the strict scrutiny

          7        standard that would be created by the amendment would go

          8        to protect the parents' right from interference.

          9             COMMISSIONER EVANS:  From the State, uh-huh.

         10             CHAIRMAN DOUGLASS:  Any further debate?  Commissioner

         11        Connor.

         12             COMMISSIONER CONNOR:  Mr. Chairman, I rise to support

         13        the proposed amendment.  Ladies and gentlemen, let me

         14        suggest to you that under the Federal Constitution, the

         15        United States Supreme Court has recognized the right of

         16        parents and guardians to direct the upbringing and

         17        education of their children under their control.

         18             The staff analysis cites to Myers versus Nebraska and

         19        the Pierce versus Society of Sisters.  And specifically in

         20        the Pierce case, the court there struck down an act which

         21        it deemed, and it was an act that had to do with

         22        education, which it deemed, and I quote, "to unreasonably

         23        interfere with the liberty of parents and guardians to

         24        direct the upbringing and education of children under

         25        their control."



                                                                          36

          1             And the court went on to make this observation, which

          2        I believe that each of you would agree with, I certainly

          3        hope so.  "The child is not the mere creature of the

          4        State.  Those who nurture him and direct his destiny have

          5        the right, coupled with the high duty, to recognize and

          6        prepare him for additional obligations."

          7             Now ladies and gentlemen, as popular as that

          8        perspective may be, I would submit to you, it is not

          9        shared by everyone.  And it is not shared by everyone in

         10        government.

         11             I'll never forget a number of years ago having been

         12        appointed by Governor Bob Martinez to serve on the

         13        Governor's Constituency for Children.  And I'll never

         14        forget during our initial orientation session of that

         15        body, the new appointees were asked if they would share

         16        their perspective about children's issues.

         17             I made the observation during my remarks that I felt

         18        very strongly that parents were the people who knew their

         19        children most and loved them -- who knew their children

         20        best and loved them most, and that they really ought to be

         21        accorded a presumption by government of good faith and

         22        correctness in the rearing of their children.

         23             You would have thought that I had brought the house

         24        down.  Now there was much hue and cry and the statements

         25        were made largely by representatives of the Department of



                                                                          37

          1        Health and Rehabilitative Services.  Oh, Mr. Connor, you

          2        don't understand, most parents aren't really qualified to

          3        raise their children, and if we had a cause of action for

          4        parental malpractice in this state, the courts would be

          5        flooded with lawsuits by children who were suing their

          6        parents for malpractice.

          7             Now, ladies and gentlemen, that's something that

          8        happened.  In 1994, I had occasion to participate, along

          9        with Senator Crenshaw and others, in a gubernatorial

         10        campaign.  As I went around the state, I found that the

         11        agency most criticized by the people of the state of

         12        Florida, in my experience, was the Department of HRS.  And

         13        the repeated refrain had to do with interference by the

         14        HRS with parents in the rearing and upbringing of their

         15        children.

         16             And I heard, and I guarantee you Senator Crenshaw

         17        heard and everybody who participated in that campaign

         18        heard, case after case after case where parents lamented

         19        the intrusion of government into that relationship, the

         20        second-guessing of government by, into that relationship,

         21        and the dispossessing of fundamental rights of due process

         22        and the right to confront your accuser and all other kinds

         23        of problems that were incidental to the way in which the

         24        Department of HRS has gone about discharging its

         25        responsibilities in the state.



                                                                          38

          1             Your question, Commissioner Brochin, was, Is this a

          2        right of parents?  Indeed it is a right of parents.  And I

          3        would submit to you it is a right of parents for the

          4        benefit of the children.  Children are not creatures of

          5        the State.  As the court said eloquently, those who

          6        nurture him and direct his destiny have the right, coupled

          7        with the high duty, to recognize and prepare him for

          8        additional obligations.

          9             Without a doubt, the State maintains a compelling

         10        interest in the investigation, prosecution and punishment

         11        of child abuse and neglect.  Unquestionably the state has

         12        a compelling interest.  And this is a classic example

         13        where we seek to arrive at a balancing of the interests

         14        that are at stake.  And it is a very, very delicate

         15        balance in that respect.

         16             I would submit to you though, ladies and gentlemen,

         17        that when we effectively, through government, substitute

         18        government as the surrogate of the child, or when we

         19        adultify the child, in other words, when we turn children

         20        into little adults, we make them vulnerable to all manner

         21        of exploitation by big adults.

         22             We have no precious -- we have no resource more

         23        precious than our children.  And I would submit to you

         24        that children have no resource more precious than their

         25        parents.  We are seeing the breakdown of the family, we



                                                                          39

          1        are seeing how that plays out in our society in terms of

          2        the breakdown of society; the rise of violence, the

          3        breakdown of social norms, a host of problems.  The family

          4        historically has been the primary mediating institution

          5        for the transmission of values and the civilizing of our

          6        society.

          7             I would suggest to you, for those of you who may have

          8        the unexpressed concern about the issue that Commissioner

          9        Evans has raised about, what about the impact on T.W.?  I

         10        would suggest to you that what she said is exactly

         11        accurate.

         12             But further I would suggest to you that in view of

         13        our discussion yesterday in which this body expressly

         14        rejected the parent consent proposal that went to the

         15        issue of abortion and medical treatment, I would suggest

         16        to you that that would seal it for any reviewing court

         17        about whether or not this proposal would have the effect

         18        of reversing the T.W. decision.  You have made it clear,

         19        to my chagrin and consternation, that you didn't want that

         20        to be the case.  That record is abundantly clear.

         21             But I do think we would do well, we would do well for

         22        parents and we would do well for children, to adopt this

         23        very positive amendment and to assure the protection of

         24        parents, which indeed I would suggest to you are natural

         25        rights, government having been ordained to secure those



                                                                          40

          1        rights, not to confer those rights because what government

          2        can give, government can take away.

          3             And we have seen increasingly the notion in our

          4        society and in this state that children are the creatures

          5        of the State, that the professionals know best and parents

          6        that have a subordinate role in many respects are just to

          7        be tolerated.

          8             I urge your passage of this very important amendment.

          9        Thank you.

         10             CHAIRMAN DOUGLASS:  Any further debate?  You may

         11        close, Commissioner Evans.

         12             COMMISSIONER EVANS:  I feel that I have closed.

         13        Thank you.

         14             CHAIRMAN DOUGLASS:  Ready to vote?  Unlock the

         15        machine, take the vote.

         16             (Vote taken and recorded electronically.)

         17             CHAIRMAN DOUGLASS:  Lock the machine and announce the

         18        vote.

         19             READING CLERK:  Ten yeas and 18 nays, Mr. Chairman.

         20             CHAIRMAN DOUGLASS:  All right.  Commissioner

         21        Sundberg, I believe you wanted to be recognized to move to

         22        withdraw one of the proposals that's on the special order.

         23             COMMISSIONER SUNDBERG:  Thank you, Mr. Chairman.  I

         24        should like to withdraw Proposal No. 174.  I understand

         25        that the Governor's general counsel, J. Hardin Peterson,



                                                                          41

          1        had an opportunity to address the committee regarding this

          2        proposal and it was rejected.  And I certainly am not

          3        nearly as eloquent as Mr. J. Hardin Peterson.  So I'll

          4        withdraw it.

          5             CHAIRMAN DOUGLASS:  Without objection, it is

          6        withdrawn.

          7             Commissioner Henderson.

          8             COMMISSIONER HENDERSON:  Mr. Chairman, I want to

          9        apologize to Commissioner Sundberg for not zealously

         10        coming to the defense of the Governor's general counsel

         11        and to you.  In fact, I was taken to the woodshed

         12        afterwards and was prepared to wholeheartedly support the

         13        proposal today, even though I voted against it in

         14        committee.

         15             COMMISSIONER SUNDBERG:  That may make three of us

         16        then.

         17             CHAIRMAN DOUGLASS:  I don't know where the woodshed

         18        was, but there have been some occasions you probably

         19        should have been there before, Commissioner Henderson.

         20             COMMISSIONER EVANS-JONES:  I too was on that

         21        committee and am prepared to speak for it, if Commissioner

         22        Sundberg wants to continue.

         23             CHAIRMAN DOUGLASS:  Keep going, you are going to get

         24        four or five votes.

         25             Do you want to withdraw it or you want to take it up?



                                                                          42

          1        We can take it up right now if you would like.

          2             COMMISSIONER SUNDBERG:  If there are others,

          3        obviously, who want to speak to it and vote for it, I will

          4        defer to that and not withdraw.  As I say, I have nothing

          5        to add to J. Hardin's proposal.  If there is anyone who

          6        would like to add to it, please do.  I know we have lots

          7        of things to move on this agenda.

          8             CHAIRMAN DOUGLASS:  Let's go ahead and take this up

          9        and dispose of it.  If you would just present it and the

         10        reason for it, and then others who are involved can

         11        present the other reason and then we can proceed with it.

         12        Or you can yield to Commissioner Henderson who is prepared

         13        to do that.

         14             COMMISSIONER SUNDBERG:  Do you wish to speak to it,

         15        Commissioner?

         16             COMMISSIONER HENDERSON:  Yes.

         17             COMMISSIONER SUNDBERG:  Thank you.

         18             CHAIRMAN DOUGLASS:  Commissioner Henderson, you are

         19        recognized.

         20             We are on Proposal No. 174, would you read it,

         21        please?

         22             READING CLERK:  Proposal 174, a proposal to create

         23        Article IV, Section 14, Florida Constitution; providing

         24        for a public utilities commission established by the

         25        Legislature to be an executive agency that exercises



                                                                          43

          1        quasi-legislative and quasi-judicial powers.

          2             CHAIRMAN DOUGLASS:  Now Commissioner Henderson.

          3             COMMISSIONER HENDERSON:  Thank you, Mr. Chairman, and

          4        Commissioner Sundberg.  To give this issue a fair hearing,

          5        because I think that it is one of those issues if you look

          6        back at how the Constitution Revision Commissions of the

          7        past have dealt with the Public Service Commission, it has

          8        been a big issue so we will give it a couple minutes.

          9             There was -- what we now have as the Public Service

         10        Commission grew out of the legislatively-created old

         11        Railroad Utilities Commission.  And at the time of the

         12        adoption of the 1968 Constitution, there was an assumption

         13        that the PSC was operating as an executive agency.  And in

         14        fact, when you look at what the PSC does, it basically

         15        sets rates.  And it is acting in a regulatory capacity and

         16        an executive capacity.  It is in some respects similar to

         17        the Game Commission.  It operates -- although the Game

         18        Commission operates as an independent constitutional

         19        commission.

         20             When the 25 department cap came into effect with the

         21        '68 Constitution, the issue was whether or not the Public

         22        Service Commission was within that or without that.  And

         23        the way the -- there were a series of decisions from the

         24        Supreme Court, they were not directly on point but it

         25        really came out in dicta, and indeed I think even in the



                                                                          44

          1        footnote, that indicated that the Public Service

          2        Commission was not an executive agency but was in fact an

          3        agency of the legislative branch of government.  And it

          4        was actually backdoored in at that point.

          5             I think there was an original discussion by the court

          6        that, well, it is not an executive agency therefore it

          7        must be something else.  And then in a, in dicta in a

          8        later opinion, the Supreme Court listed agencies that were

          9        subject to the Legislature and included the Public Service

         10        Commission as one of those.

         11             That's true even though, for instance, the Public

         12        Service Commission operates under the rules of procedure

         13        of the Administrative Procedures Act, like all other

         14        executive agencies.

         15             The proposal has come about because of a tension, you

         16        might say, between the executive branch and the

         17        legislative branch over the appointments to the Public

         18        Service Commission.  Through a statutory scheme that is

         19        very complicated, there is a mix of appointments made by

         20        the Legislature and made by the Governor to the PSC.

         21             You know, in the past, the Public Service Commission

         22        was elected and a subsequent change has now allowed that

         23        to be appointed by the Governor.  So the proposal in its

         24        purest form is probably something that makes sense.  I

         25        mean, in the scheme of things, the Public Service



                                                                          45

          1        Commission as we see it and we know it is operating as or

          2        should operate as an executive agency, but it is not.

          3             So that's the -- that is the proposal.  I think that

          4        a lot of discussion in the committee to give, to tell you

          5        about the discussion before the committee was a question

          6        of whether or not the system is actually working.  And

          7        there is a difference of opinion on that.  Some people

          8        think, well, it is working as a Public Service Commission,

          9        people have their day in court, the rates and the system

         10        by which they are set appear to be fair.

         11             And what has caused the tension is the actual

         12        appointment process, making this a little bit political.

         13        But that was the discussion of this issue and I'm prepared

         14        to say, Mr. Chairman, mea culpa, mea culpa, I should have

         15        supported it in the committee.

         16             CHAIRMAN DOUGLASS:  Commissioner Morsani.

         17             COMMISSIONER MORSANI:  Well, I'm not sure whether my

         18        friend on the left is for or against it, but anyway.

         19             CHAIRMAN DOUGLASS:  We have that problem with him

         20        from time to time.

         21             (Laughter.)

         22             COMMISSIONER MORSANI:  If that's not a

         23        fence-straddle, I'm not sure what one is.

         24             CHAIRMAN DOUGLASS:  One thing we would agree, you are

         25        not a fence straddler.



                                                                          46

          1             COMMISSIONER MORSANI:  No, I'm afraid you know where

          2        I stand.

          3             As the vice-chairman of the committee and now that

          4        the committee chairman is not here I need to also say why.

          5        And I think as we really look at the issue, it has nothing

          6        to do with the Public Service Commission, it has to do

          7        with personalities.

          8             And that it is working, it didn't seem like there was

          9        a justification for changing the current system, even

         10        though under the way we like to run things we like to have

         11        executive authority and they feel like these people are

         12        not elected, therefore, elected officials should be making

         13        the decisions and not a Public Service Commission that's

         14        appointed, and all those things.

         15             So I think the committee was right, I do not think we

         16        should attempt to change it, and I do not think that it

         17        should be part of the Constitution Revision Commission to

         18        do at this time.  I think the Legislature, in its wisdom,

         19        and the Governor, if they, down the road, if they want to

         20        handle this matter -- so far they haven't chosen to, I

         21        don't think it is a real -- you have got to be careful

         22        about this word and I'm probably not going to use the

         23        proper words, but I don't think it is paramount to the

         24        citizens of this state to have this on our agenda.

         25             And I think the committee was right and I would



                                                                          47

          1        encourage you to vote against the proposal, as we did in

          2        the committee.

          3             CHAIRMAN DOUGLASS:  Any further questions?

          4        Commissioner Evans-Jones.

          5             COMMISSIONER EVANS-JONES:  I did vote against it in

          6        committee too, and I also had a bill which was voted down

          7        which would be for an elected Public Service Commission.

          8        And I have decided that that may not be the best way to

          9        go.

         10             So I do think perhaps we would have more

         11        accountability if it were under the executive branch.  And

         12        I don't know how many people in here know the name of a

         13        single Public Service Commissioner; a few, a few.  You

         14        certainly, yes, you would, Madam President, I mean,

         15        Ms. Commissioner.

         16             But I think that it is worth thinking about.  And we

         17        have spent a great deal of time talking and thinking about

         18        trying to make someone truly accountable.  And if we put

         19        it under the executive branch and let the Governor be in

         20        charge, it might not be a bad idea.

         21             CHAIRMAN DOUGLASS:  Commissioner Sundberg.

         22             COMMISSIONER SUNDBERG:  In favor of the amendment of

         23        the proposal.  It does -- the current system, because it

         24        has -- is deemed to be, and I, you know, larger mea culpa,

         25        I'm sure I was a party to some of those decisions that



                                                                          48

          1        said, yes, it's legislative in nature, as opposed to

          2        executive.  And we tend to perpetuate our mistakes.

          3        That's one thing about the judiciary, you know.

          4             CHAIRMAN DOUGLASS:  But you write them down.

          5             COMMISSIONER SUNDBERG:  Right, exactly.

          6             But it has, in my judgment, it has, the system, and

          7        we have some former members -- and I speak not to the

          8        personalities of the members of the nominating commission,

          9        but that is the process by which the appointments are

         10        made.  And the Governor is limited in his or her ability

         11        to make appointments to the commission by these nominating

         12        commissions who operate.

         13             There has been significant litigation -- it was

         14        significant because I was involved in it -- but over this

         15        very issue of to what extent the executive is bound.  I

         16        think that it makes a lot more sense -- this is not a

         17        matter of great philosophical import.  It doesn't rise to

         18        the dignity of equal rights and due process.

         19             But amongst those issues of just trying to fix things

         20        that need to be fixed, and I'll urge upon this group at

         21        some point in time that we have sort of an omnibus

         22        provision that fixes things that need to be fixing, I

         23        think this is one of the things that need to be fixed so I

         24        join with the good company that has spoken here today, and

         25        even J. Hardin Peterson, and urge upon you the passage of



                                                                          49

          1        this amendment.  Thank you.

          2             CHAIRMAN DOUGLASS:  Anybody else?  Commissioner

          3        Jennings.

          4             COMMISSIONER JENNINGS:  Commissioner Thompson and I

          5        are over here sort of wrestling with this.  And

          6        Commissioner Langley will remember and Commissioner Mills

          7        will remember, I was trying to think back when the elected

          8        Public Service Commission went to an appointed.  And it

          9        was either -- was it '78, Dick?  Either '77 or '78.

         10        Because I was in the House, so I know.

         11             CHAIRMAN DOUGLASS:  I think it was '78, I believe.

         12             COMMISSIONER JENNINGS:  We voted on it about every

         13        time we were there.

         14             CHAIRMAN DOUGLASS:  We voted on it in the '78

         15        Revision Commission.

         16             COMMISSIONER JENNINGS:  Did you?

         17             CHAIRMAN DOUGLASS:  Yes.

         18             COMMISSIONER JENNINGS:  And I guess I rise just for

         19        points of information, and my legislative colleagues may

         20        be able to assist here, because the memory starts to grow

         21        dim after awhile.

         22             But based on that, we easily could have this process

         23        for at least 20 years.  So many of you would have known no

         24        other process, except some of us who have been here, those

         25        of us who have been in Florida for a long time.  And I



                                                                          50

          1        remember the debate vividly about the issue of going from

          2        elected to appointed.  And those of us who feel strongly

          3        about citizens' ability to have input were very torn about

          4        leaving an elected system, as we continue to be, as we

          5        talk about judges, as we talk about the Cabinet and

          6        Cabinet positions.

          7             And the nominating counsel, or commission, became

          8        sort of the halfway point that we weren't moving it

          9        entirely -- we were moving it away from the electorate,

         10        but we weren't just carte blanche giving it to the

         11        executive branch.  And maybe that was really just the

         12        Legislature trying to rationalize why we were going in

         13        this direction, but we weren't ready to just go all the

         14        way.  So we held on to this nominating commission process.

         15             And correct me if I'm wrong.  I mean, that's how I

         16        remember back to it.  It was sort of us saying, okay, here

         17        it is, but you only sort of got it halfway.

         18             And through the years, that nominating commission has

         19        been an interesting animal out there.  I served on it,

         20        perhaps some of my other legislative colleagues have

         21        served on it.  I now am in the posture as the president of

         22        the Senate, I appoint members to it, as does the Speaker

         23        of the House, as we go through this.

         24             And Justice Sundberg is correct, that we have even

         25        had some legal battles over those nominees, because, in



                                                                          51

          1        fact, as there are vacancies, names are sent forward.  And

          2        was it last year or the year before, there was some

          3        discussion about lumping two incumbents into one grouping

          4        and that the Governor could not appoint both of those

          5        incumbents because they were in a grouping over here, and

          6        there was a challenge to that.

          7             So we have sort of wrestled around with the process.

          8        And I rise to share this with you, more just a point of

          9        information.  As I look at this, I'm probably going to

         10        vote to retain the system, only because I haven't

         11        really -- this is a terrible thing to say in public, I

         12        guess, I haven't thought through it all the way to the end

         13        to say maybe is this where we need to be.  But I wanted to

         14        share that information with you as to why this system was

         15        developed.

         16             If you were one of those, and Senator Crenshaw was

         17        probably there too, or maybe he had left at that point --

         18        or Commissioner Crenshaw.  As we look back over those 20

         19        years, it's at least served us with the fact that, with

         20        all of the cumbersome nature of it, we have had some

         21        excellent, generally excellent Public Service

         22        commissioners.  And that the Public Service Commission has

         23        been able to do its job as far as a regulatory structure

         24        for the state of Florida.

         25             So I didn't really rise to speak in favor or in



                                                                          52

          1        opposition, I was sort of shaking out my memory.

          2             CHAIRMAN DOUGLASS:  Institutional knowledge and

          3        historical background.

          4             COMMISSIONER JENNINGS:  And once we go past 20 years,

          5        we are getting pretty shaky on the memory, too.  Thank

          6        you.

          7             CHAIRMAN DOUGLASS:  Commissioner Jennings, thank you

          8        very much.  Commissioner Nabors.

          9             COMMISSIONER NABORS:  I wanted to ask Mr. --

         10        Commissioner Sundberg a question.

         11             COMMISSIONER SUNDBERG:  A friendly question?

         12             COMMISSIONER NABORS:  Yes, I think it is.  It is a

         13        question to try to seek real world information.

         14             I served on the nominating commission I think for

         15        about six years; once I was appointed by the commission,

         16        and once I think by the House.  And as I recall the case

         17        law in this area is that the court has construed it to be

         18        a legislative branch primarily because it's involved in

         19        the setting of rates and rates is traditionally a

         20        legislative function.

         21             And so because of that, because it has rate-making

         22        power, it was considered a legislative function.  And then

         23        the controversy arises, since it is a legislative function

         24        as to what power the Governor has in terms of

         25        appointments.



                                                                          53

          1             If that's factually correct, as I understand what

          2        this would do basically would be to allow the Governor to

          3        make, or whatever the executive appointing body would be,

          4        probably the Governor, to make the appointments unfettered

          5        by any interference by the legislative.  Is that the

          6        intent of that?  I'm trying to understand what the

          7        ramification would be on the appointment process.

          8             COMMISSIONER SUNDBERG:  The ramifications are just as

          9        you have indicated.  I wouldn't style it or refer to it as

         10        interference by a commission.  But yes, it would lead the

         11        executive.  And you are right, that's why the court

         12        concluded that the PSC is in the legislative branch

         13        because traditionally rates have been set by the

         14        legislature.  I mean, directly.

         15             But that's not terribly persuasive because it used to

         16        be the Legislature also used to grant, was the only body

         17        that could grant divorces some years ago.  But the

         18        judiciary does that sort of thing now.  But what has --

         19        the premise is that, yes, you know, the Governor or

         20        whatever the executive, the Governor is the appointing

         21        person or authority now, simply by statute.  Presumably,

         22        the Legislature could change that this session, this

         23        upcoming session, if they wanted to.

         24             But it has been not only cumbersome, but to go

         25        back -- and my recollection is the same as Commissioner



                                                                          54

          1        Jennings', that this was sort of a compromise to have this

          2        commission intervening in the appointed process because

          3        you were going away from a pure elected process.  And I

          4        certainly am in favor of an appointed process.

          5             But the Chairman asked how many people here knew who

          6        was on the Public Service Commission.  And I would ask the

          7        question, how many people know who are on the nominating

          8        commission who nominates, apart from Commissioner Jennings

          9        who is the font of all knowledge, information, and history

         10        on the commission.

         11             So, I'm not sure that it accomplished what was

         12        intended, that the people have had any great input into

         13        the system.  And that's certainly more than you wanted to

         14        hear.

         15             COMMISSIONER NABORS:  Could I ask one further

         16        question?  Would you believe, Mr. Sundberg, based upon my

         17        experience of service in the PSC nominating commission for

         18        six years, that I think this is an excellent idea?

         19             COMMISSIONER SUNDBERG:  Deeming that to be a very

         20        friendly question, I will respond yes, I did suspect that

         21        would be your sentiments, Mr. Nabors.

         22             COMMISSIONER NABORS:  And would you believe the

         23        reason that I feel that way is because I have had the

         24        pleasure of serving on nominating commissions in the

         25        judicial branch, at the Supreme Court, the trial, and the



                                                                          55

          1        district court level, all of which I found to work very

          2        well and to be very effective in terms of narrowing down

          3        the candidates for consideration.

          4             However, my experience at the PSC nominating

          5        commission was exactly the opposite, because, one, so many

          6        candidates were sent up that it became a meaningless

          7        exercise.  And secondly, it was in a -- got to be a

          8        contentious process beyond the merits of the candidates

          9        that were being placed forward.

         10             COMMISSIONER SUNDBERG:  And in candor, Mr. Nabors

         11        also announces that he was, in his former life, a general

         12        counsel to a Governor.

         13             CHAIRMAN DOUGLASS:  So was I, but that doesn't affect

         14        my opinion on this particular matter.

         15             All right.  Is there any further discussion?

         16             I do have a question of you, Commissioner Sundberg,

         17        that occurred to me.  The court giveth, the court can

         18        taketh away.  It's my recollection that maybe this idea of

         19        it being in the legislative branch came in an advisory

         20        opinion.

         21             COMMISSIONER SUNDBERG:  Which, in fact, as you know,

         22        Mr. Chairman, is no opinion of the court at all, it is an

         23        opinion of the justices of the court.

         24             CHAIRMAN DOUGLASS:  My question is, if it were

         25        presented to the court again, the issue of separation of



                                                                          56

          1        powers, squarely presented in an adversary position, it is

          2        entirely conceivable the court could reach a different

          3        result.  Is that not true?

          4             COMMISSIONER SUNDBERG:  Absolutely, and that's the

          5        point.  They are not even bound -- the advisory opinion

          6        has no precedential value.

          7             CHAIRMAN DOUGLASS:  Is that not also true, the reason

          8        that some members of the commission felt that it didn't

          9        rise to the level of including it in our revision

         10        proposals, because they were still hopeful, those who felt

         11        the other way on this, that the court would get a case in

         12        which they could make that resolution?

         13             COMMISSIONER SUNDBERG:  I have no way of knowing if

         14        that's what was in their minds or not, Mr. Chairman.

         15             CHAIRMAN DOUGLASS:  Would you like to close or are we

         16        ready to vote?

         17             COMMISSIONER SUNDBERG:  I have closed.

         18             CHAIRMAN DOUGLASS:  Unlock the machine.

         19             (Vote taken and recorded electronically.)

         20             CHAIRMAN DOUGLASS:  Announce the vote.

         21             READING CLERK:  Fifteen yeas and 11 nays,

         22        Mr. Chairman.

         23             CHAIRMAN DOUGLASS:  Well, I guess, Mr. Henderson, if

         24        you were ever in the woodshed, you are now out.

         25             COMMISSIONER HENDERSON:  If you would just report



                                                                          57

          1        that directly to the Governor right now.  Thank you.

          2             CHAIRMAN DOUGLASS:  All right.  I would like to, with

          3        your permission, if you are ready, Commissioner Freidin --

          4        where is Commissioner Freidin?

          5             COMMISSIONER FREIDIN:  I'm over here.

          6             CHAIRMAN DOUGLASS:  Are you ready to proceed with

          7        Proposal No. 11 or 86?  You are not ready?

          8             COMMISSIONER FREIDIN:  Right.

          9             CHAIRMAN DOUGLASS:  All right.  Commissioner

         10        Sundberg, I would presume that you would still need a

         11        little time before you got to Proposal No. 2, so I'm going

         12        to move to Proposal No. 141 by Commissioner Mathis.  Would

         13        you read the proposal, please?

         14             READING CLERK:  Proposal 141, a proposal to revise

         15        Article I, Section 16, Florida Constitution; providing

         16        that a spouse of a state or county prisoner has a right to

         17        conjugal visitation with that prisoner; providing that a

         18        person connected by affinity or consanguinity to state or

         19        county prisoner has a right of family visitation with that

         20        prisoner.

         21             CHAIRMAN DOUGLASS:  Commissioner Mathis, you are

         22        recognized.  Do you rise for a purpose, Commissioner

         23        Langley?

         24             COMMISSIONER LANGLEY:  I would like to go to the

         25        bathroom.



                                                                          58

          1             CHAIRMAN DOUGLASS:  You would like to -- if she will

          2        yield.

          3             COMMISSIONER MATHIS:  No, I will not yield.

          4             (Laughter.)

          5             CHAIRMAN DOUGLASS:  You have to be careful with these

          6        older men, Commissioner Mathis.  You may proceed.

          7             COMMISSIONER MATHIS:  Maintaining family values is a

          8        goal to this proposal.  Allowing for conjugal visitation

          9        will allow -- will, I think, help the prison system,

         10        because it's been shown that inmates are more likely to

         11        have a lower recidivism rate when they are allowed

         12        conjugal visitation and inmates are easier to manage when

         13        they are allowed conjugal visitation.

         14             It's important to note that the largest percentage of

         15        inmates that are incarcerated are incarcerated for drug

         16        and drug-related violations.

         17             I think it's important also to define, what is

         18        conjugal visitation.  What conjugal visitation does is

         19        enable married persons to enjoy being associated with one

         20        another, to sympathize together, to confide together, to

         21        allow them to create domestic happiness, as well as having

         22        intimacies with one another.  Strong family ties are so

         23        important to the rehabilitative process and have been

         24        shown to reduce recidivism and I think are an important

         25        goal for our State's Constitution.



                                                                          59

          1             And we have seen that through the public proposals.

          2        And I ask that this commission fully consider this

          3        proposal.

          4             CHAIRMAN DOUGLASS:  Thank you, Commissioner Mathis.

          5             COMMISSIONER MATHIS:  Excuse me, Mr. Chairman, also,

          6        I would like to report that it was reported out of

          7        committee favorably.

          8             CHAIRMAN DOUGLASS:  Thank you.  That's not on my list

          9        as to how this was reported, or I would have announced it.

         10        It was favorably reported by the committee on Declaration

         11        of Rights.  Does anyone else care to speak to this?

         12        Commissioner Brochin.

         13             COMMISSIONER BROCHIN:  Question.

         14             CHAIRMAN DOUGLASS:  Okay.

         15             COMMISSIONER BROCHIN:  Commissioner Mathis, can these

         16        sort of visits be permitted by law?  In other words, does

         17        it take a constitutional amendment to permit these sort of

         18        visitations?

         19             COMMISSIONER MATHIS:  We had a request for

         20        information from the Department of Corrections, and I must

         21        say that I'm not certain of that -- the answer to that

         22        particular question.  What I am certain of right now is

         23        that the Department of Corrections feels like they have

         24        the ability to deny visitations for family members, deny

         25        conjugal visitations, and also to deny visitations for



                                                                          60

          1        people who might be connected with the inmate by some

          2        affinity, strong friendship relationships, fiancee

          3        relationships.

          4             And in this case, what we are saying here, why we are

          5        asking for the constitutional amendment, is to show that

          6        we feel like the State has a strong interest in

          7        maintaining these family ties for these inmates in

          8        allowing for conjugal visitation.

          9             COMMISSIONER BROCHIN:  One further question.  Would

         10        this also apply to inmates on death row?

         11             COMMISSIONER MATHIS:  It's my understanding that this

         12        would apply to all inmates.

         13             CHAIRMAN DOUGLASS:  Commissioner Langley.

         14             COMMISSIONER LANGLEY:  For a question this time.  And

         15        as a point of order, Commissioner Mills, the rules

         16        chairman and others were in the rest room without

         17        permission and I don't think I should be treated any

         18        differently.  And I don't have a continence problem, as

         19        you may, Mr. Chairman, but that's not it at all.

         20             CHAIRMAN DOUGLASS:  On your motion, I will excuse

         21        them, retroactively.

         22             COMMISSIONER LANGLEY:  Now, if I may, if the sponsor

         23        would yield to a serious question.  Would this apply to

         24        gay relations as well as normal relations?

         25             COMMISSIONER MATHIS:  It's my understanding that



                                                                          61

          1        conjugal visitation would apply only to married inmates,

          2        and that would mean between male and female marriages

          3        since --

          4             COMMISSIONER LANGLEY:  You said in your explanation

          5        just now that it would be fiancee as well.

          6             COMMISSIONER MATHIS:  We are talking about allowing

          7        visitation by fiancees, family members, also people who

          8        are related by affinity to the inmate, but only allowing

          9        conjugal visitation for married inmates.

         10             CHAIRMAN DOUGLASS:  Thank you.  Commissioner Barton.

         11             COMMISSIONER BARTON:  In the committee, there was

         12        somebody from the Department of Corrections who did come

         13        and speak to us at one point and raised questions that I

         14        think are worth considering, and that is that we may be

         15        premature in even discussing this issue, because there's

         16        so many questions yet to be asked.

         17             One of which was that two thirds, I believe, of our

         18        prison population is from South Florida, but two thirds of

         19        the prisoners are in North Florida.  They would have

         20        problems with security, they would have problems with

         21        sheer numbers.  I have forgotten what the prison

         22        population is, but it is a lot.  And if everybody was

         23        going to have conjugal visits, then we are talking about

         24        almost constantly having people come into the prisons for

         25        this purpose.



                                                                          62

          1             I would suggest that we don't have enough information

          2        to pass this at this time.

          3             CHAIRMAN DOUGLASS:  Any further questions or

          4        discussions?

          5             Question, Commissioner Mathis.  Was it brought out

          6        that this could be accomplished by -- without a

          7        constitutional provision and actually be done either by

          8        statute or perhaps even by rules and regulations of the

          9        prison system?

         10             COMMISSIONER MATHIS:  One of the limitations that we

         11        have faced as a Constitution Revision Commission has been

         12        that our focus is strictly the Constitution.  While I

         13        think there has been some discussion about recommendations

         14        that we as a Constitution Revision Commission would make

         15        for statutory provisions, nothing like that has been

         16        solidified, and I don't think we have provided for that in

         17        any of our rules.  But if we did, I do think that this

         18        proposal would be one that would be -- could be properly

         19        dealt with as a statutory provision.

         20             And so I would lend the wisdom of this body and ask

         21        them as to which they would prefer.  But we are limited, I

         22        was limited in this proposal as a Constitution revision.

         23             CHAIRMAN DOUGLASS:  I was also -- was it pointed out

         24        in the committee that in the federal prison system,

         25        conjugal visits are allowed under regulations by the



                                                                          63

          1        prison authorities?  And in some states that's true too,

          2        is it not?

          3             COMMISSIONER MATHIS:  And I respect Commissioner

          4        Barton's position, and it was directed at that, it was

          5        said that, by the Department of Corrections, that two

          6        thirds of the prisoners are from South Florida, while two

          7        thirds of the prisoners are housed in North Florida, in my

          8        mind, that showed a greater importance for conjugal

          9        visitation and allowing for broader visitation.  And so,

         10        yes, and I must agree with you, the federal prison system

         11        does allow this.

         12             CHAIRMAN DOUGLASS:  All right.  Is there any further

         13        discussion or questions?  If not, we'll proceed to vote.

         14        Open the machine.

         15             (Vote taken and recorded electronically.)

         16             CHAIRMAN DOUGLASS:  Lock the machine and record the

         17        vote.

         18             READING CLERK:  Nine yeas and 18 nays, Mr. Chairman.

         19             CHAIRMAN DOUGLASS:  All right.  We'll move to the

         20        proposal by Commissioner Mills, No. 171.  Would you read

         21        it, please?  This was disapproved by the committee on

         22        Declaration of Rights.

         23             READING CLERK:  Proposal 171, a proposal to revise

         24        Article I, Section 23, Florida Constitution; requiring the

         25        State to protect natural persons against nongovernmental



                                                                          64

          1        intrusion for commercial purposes into their lives.

          2             CHAIRMAN DOUGLASS:  Commissioner Mills, you are

          3        popular, everybody is surrounding you there.

          4             COMMISSIONER MILLS:  They just wanted the microphone.

          5        It is my intention to withdraw this.  And just a statement

          6        for the record, I would ask the commission to allow this

          7        to be withdrawn.  This was an attempt to follow up on the

          8        efforts to draft a provision relating to informational

          9        privacy, to protect our citizens against abuses by the

         10        private sector.

         11             The committee worked very hard on this, and I think

         12        it would be a reasonable conclusion to say that to craft

         13        language that would be effective, constitutional and

         14        practical and put in the Constitution is difficult, if not

         15        impossible.  Those of you that continue to care about this

         16        issue, including myself, will refer the information that

         17        we have gathered to the Legislature and continue to work

         18        with the industry that I think has been very responsive on

         19        this issue.  So I would move, Mr. Chairman, that this be

         20        withdrawn from further consideration.

         21             CHAIRMAN DOUGLASS:  All right.  There's been a motion

         22        that this be withdrawn.  Without objection, it is

         23        withdrawn.

         24             Now, we'll move -- Commissioner Freidin, are you

         25        ready yet?



                                                                          65

          1             COMMISSIONER FREIDIN:  They are typing up an

          2        amendment as we speak.

          3             CHAIRMAN DOUGLASS:  Okay.  We have two.  Would you

          4        like to take up -- you have two.

          5             COMMISSIONER FREIDIN:  No, I want to take up No. 11

          6        first and then --

          7             CHAIRMAN DOUGLASS:  We'll do that.  Just let me know

          8        when you are ready.

          9             COMMISSIONER FREIDIN:  They are working on it right

         10        now.

         11             CHAIRMAN DOUGLASS:  We are waiting anxiously.

         12             COMMISSIONER FREIDIN:  I know that.  We are working

         13        as fast as we can, Mr. Chairman.  Thank you.

         14             CHAIRMAN DOUGLASS:  Great.  We will move to Proposal

         15        168 by Commissioner Corr.  Would you read it, please?

         16             READING CLERK:  Proposal 168, a proposal to revise

         17        Article IV, Section 6, Florida Constitution; providing

         18        that an entity purportedly within an executive department,

         19        which is not subject to the direct supervision of the

         20        agency head is a department.

         21             CHAIRMAN DOUGLASS:  All right.  Commissioner Corr.

         22             COMMISSIONER CORR:  Thank you, Mr. Chairman.  First

         23        of all, I want to thank staff for their work on this

         24        proposal, especially Deb Kearney.  This was an item that

         25        came up in our Executive Committee meetings during



                                                                          66

          1        discussions of Cabinet reform.

          2             And it's one of those that I think that also meets

          3        the criteria Commissioner Sundberg was talking about as

          4        one of those items that we need to fix a thing that needs

          5        fixing.  Maybe this is one of those housekeeping proposals

          6        that falls into that same category.

          7             CHAIRMAN DOUGLASS:  Commissioner Corr, I didn't

          8        announce this, but this was approved by the committee on

          9        the executive; was it not?

         10             COMMISSIONER CORR:  Yes, it was.  It was approved

         11        unanimously.  And what it does is it reinforces a

         12        provision that was proposed by the '68 Constitution

         13        Revision Commission, and later adopted by electors, that

         14        was a response to an executive branch at the time that had

         15        swelled to about 170 departments.  The current

         16        Constitution limits the executive branch to 25 departments

         17        reporting to the Governor, the Lieutenant Governor, a

         18        member of the Cabinet or any agency head that would serve

         19        at the pleasure of one of those entities.

         20             But over the past 30 years, the number of entities

         21        have grown apparently in the executive branch that do not

         22        comply with this, at least the intent of the Constitution

         23        in this regard.  The staff analysis gives an example, the

         24        Agency for Health Care Administration, in that case there

         25        is an agency head that reports directly to the Governor or



                                                                          67

          1        serves at the pleasure of the Governor, excuse me.  And as

          2        a result, it would seem that that would mean that it is a

          3        department.

          4             I have a list, a partial list, of departments

          5        currently within the executive branch.  It lists 22, and

          6        then an additional 5 that are constitutional agencies and

          7        another 11 in a partial list that include the Agency for

          8        Health Care Administration Agency, the Division of

          9        Administrative Hearings, the Florida Commission on Human

         10        Relations and it goes on and on.

         11             If you look at this partial list, there's about 38

         12        total departments in the executive branch today.  If you

         13        give it the benefit of the doubt and take out the 5

         14        constitutional agencies, that would leave 33 at least.

         15        And, again, this is a partial list.  So this is a

         16        housekeeping initiative.  I'll entertain questions at this

         17        time.

         18             CHAIRMAN DOUGLASS:  There is an amendment on the

         19        table.  Would you read the amendment please, amendment by

         20        Commissioner Henderson?

         21             READING CLERK:  By Commissioner Henderson, on Page 1,

         22        Line 22, delete the Governor and Cabinet.

         23             CHAIRMAN DOUGLASS:  Commissioner Henderson, on the

         24        amendment.

         25             COMMISSIONER HENDERSON:  I like the way that sounded.



                                                                          68

          1        Mr. Chairman, before we get -- it is a little different,

          2        but it's germane.  Before we get into that, if Mr. Nabors

          3        had a question of Mr. Corr on the main proposal, which I

          4        support, I don't want to detract from that.

          5             CHAIRMAN DOUGLASS:  All right.  You yield to

          6        Commissioner Nabors --

          7             COMMISSIONER HENDERSON:  I do.

          8             CHAIRMAN DOUGLASS:  -- who wants to direct a question

          9        to the sponsor.  Commissioner Nabors, is that correct?

         10             COMMISSIONER NABORS:  I would really like to speak in

         11        opposition.  It would be hard to frame the comment that I

         12        have in terms of a question.

         13             CHAIRMAN DOUGLASS:  Then we should proceed with the

         14        amendment.  Commissioner Henderson, would you proceed with

         15        your amendment?

         16             COMMISSIONER HENDERSON:  Thank you, Mr. Chairman.  We

         17        have had a lot of discussion the last couple days in the

         18        Executive Committee about the structure and role of the

         19        Cabinet.  And it is, as we all know, and the testimony

         20        that we have heard through the course of the public

         21        hearings, there are some very complex issues there.

         22             Clearly, one of the things that we have heard about

         23        over and over again was the issue of accountability.  So I

         24        support the main proposal that Commissioner Corr has

         25        brought here, as has been recommended for approval by the



                                                                          69

          1        committee on the executive.

          2             You will get later, I don't know if later this week

          3        or next time, a different proposal from the Executive

          4        Committee which goes to the heart of the changes in the

          5        Governor and Cabinet system.  One of the things that I

          6        think we thought we did, or I would say we certainly

          7        wanted to do, and it's not addressed by the main proposal,

          8        is the issue of eliminating the Governor and Cabinet as a

          9        department head of certain departments.  We heard earlier,

         10        heard in the course of testimony that there was a

         11        significant study of the Cabinet system.  I see that

         12        Commissioner Evans-Jones and Marshall served on part of

         13        this.

         14             They made a series of reports or recommendations

         15        concerning ways to improve the accountability of the

         16        Governor and Cabinet system.  One of the first

         17        recommendations was that the Governor and Cabinet be

         18        eliminated as the department head of individual

         19        departments.  And if I can read just read this one

         20        paragraph, Mr. Chairman, in the recommendation of this

         21        report:

         22             "The head of each department should be a secretary,

         23        appointed by and serving at the pleasure of the Governor,

         24        subject to Senate confirmation.  Departments reporting to

         25        the Governor and Cabinet are problematic for several



                                                                          70

          1        reasons; they consume the Governor's and Cabinet's time on

          2        administrative details, they lack a single, identifiable

          3        advocate for their function, they are not directly

          4        accountable to a single individual.  The department should

          5        be headed by a Secretary who serves at the pleasure of the

          6        Governor and subject to Senate confirmation."

          7             CHAIRMAN DOUGLASS:  Okay.  You heard the amendment.

          8        Discussion now or debate on the amendment?  Commissioner

          9        Mills.

         10             COMMISSIONER MILLS:  Commissioner Henderson, yield

         11        for question?

         12             COMMISSIONER HENDERSON:  Yes.

         13             COMMISSIONER MILLS:  How many agencies does this

         14        affect?

         15             COMMISSIONER HENDERSON:  At this point, three.

         16             COMMISSIONER MILLS:  And which are those?

         17             COMMISSIONER HENDERSON:  The Department of Revenue,

         18        the Department of Law Enforcement, Department of Highway

         19        Safety and Motor Vehicles.

         20             COMMISSIONER MILLS:  Thank you.

         21             CHAIRMAN DOUGLASS:  Any further debate on the

         22        amendment?  Commissioner Corr, on the amendment.

         23             COMMISSIONER CORR:  In favor of the amendment.

         24             CHAIRMAN DOUGLASS:  In favor of the amendment?

         25             COMMISSIONER CORR:  Yes, sir.  This is a good



                                                                          71

          1        amendment, it makes these agencies, these departments more

          2        accountable.  I wish I had thought of it.  I speak in

          3        favor of it.

          4             CHAIRMAN DOUGLASS:  Okay.  Are you ready to vote?

          5        All in favor of the amendment say aye; opposed?

          6             (Verbal vote taken.)

          7             CHAIRMAN DOUGLASS:  The amendment is adopted.  Now,

          8        Commissioner Barkdull.

          9             COMMISSIONER BARKDULL:  Question of Commissioner

         10        Corr.

         11             CHAIRMAN DOUGLASS:  He yields.

         12             COMMISSIONER BARKDULL:  Commissioner Corr, if this

         13        proposal is adopted, then this will require, because of

         14        the 25 limitation, the Legislature to address where they

         15        will place, as I understand it, three separate agencies at

         16        this point?

         17             COMMISSIONER CORR:  At least three.

         18             COMMISSIONER BARKDULL:  At least three, and if they

         19        can find some others.

         20             COMMISSIONER CORR:  That's right.

         21             COMMISSIONER BARKDULL:  Do you contemplate anything

         22        in the schedule to this proposal that would address how

         23        those agencies that do not at this time report directly to

         24        a department head, how they would be handled in the

         25        transition period?



                                                                          72

          1             COMMISSIONER CORR:  No, sir, what -- this is

          2        attempting to reinforce that existing requirement of 30

          3        years ago that was passed by electors, the good business

          4        requirement.  And rather than to get into the nitty-gritty

          5        of where those agencies will end up, we are going to leave

          6        that up to the Legislature.

          7             COMMISSIONER BARKDULL:  Well, would you believe me,

          8        sir, that if there is no such provision for transition and

          9        the Legislature should do nothing, we have got a lot of

         10        litigation sitting there and some very important agencies

         11        that would be involved?

         12             COMMISSIONER CORR:  I understand.

         13             CHAIRMAN DOUGLASS:  I have a question.  If we should

         14        adopt the provision or a similar provision to those that

         15        have been reported out of the committee on Cabinet reform,

         16        would this have any affect on that?  It would be just a

         17        limited number of agencies that could be under that group,

         18        as I read that committee proposal.  Commissioner Barkdull.

         19             COMMISSIONER BARKDULL:  I'm on the committee that is

         20        reporting out the Cabinet proposal and I don't think this

         21        would have an impact on that.

         22             CHAIRMAN DOUGLASS:  We can proceed then.  And you

         23        rise to speak against it, right, Commissioner Nabors?

         24             COMMISSIONER NABORS:  Mr. Chairman, I'm not

         25        necessarily against the concept, but there is some



                                                                          73

          1        unintended results that we need to talk about and it goes

          2        to some of what Commissioner Barkdull said.  I discussed

          3        it briefly with Commissioner Corr.

          4             This isn't the most exciting issue you are going to

          5        hear, but this is very important.  So if I can make sure I

          6        have everybody's attention, in addition to -- there are

          7        several entities that are placed within a department but

          8        aren't under the direct supervision, as this language

          9        indicates.

         10             For example, last session, the Florida Housing and

         11        Finance Agency, which is an agency that issues low and

         12        moderate income, affordable housing under the Constitution

         13        was created as a separate corporation, really to recognize

         14        its entrepreneurial nature.  It is placed within the

         15        Department of Community Affairs, but it's not under the

         16        direct supervision of the Secretary.  It has a very

         17        detailed process for doing a work plan, to make sure that

         18        the public interest is served.  So it's not really a

         19        department in that sense, but it's placed under the

         20        Department of Community Affairs.

         21             I believe another example would be the Florida

         22        Insurance Corporation, which was created to deal with

         23        insolvent insurers and maybe even the hurricane

         24        catastrophe fund.  So the problem we have is these

         25        entities would be, their status would be placed in



                                                                          74

          1        jeopardy, even if we pass the proposal, as to whether or

          2        not, you know, they survive without further legislative

          3        authorization.

          4             It would be my view that what we ought to do, if we

          5        want to do this, is we ought to make sure that we are not

          6        affecting constitutionally any of those in existence on

          7        the effective date of the amendment.  The Legislature

          8        always has the right to come back and change those, if it

          9        wants to.  But if you pass this as it is, as the Housing

         10        and Finance Agency, which is selling bonds all the time

         11        for affordable housing around the state, the market is

         12        going to wonder what the status of those bonds are going

         13        to be because just the fact that there is a proposal

         14        that's passed would put those in jeopardy.

         15             So it would seem to me we need to be careful.  And I

         16        applaud the idea of trying to depress the creation of

         17        additional government.  The Legislature has the ability,

         18        for all of those listed under Mr. Corr's amendment

         19        currently, to change its method of supervision currently

         20        and put it under direct supervision, if it's not.

         21             But what I'm saying is is that anything that we do

         22        doesn't take away that power.  We ought to be sure that we

         23        have a provision in here, before it passes and receives a

         24        favorable vote here, that indicates that we are not trying

         25        to constitutionally undo any that are in existence today.



                                                                          75

          1        It goes to what Mr. Barkdull was saying.

          2             It doesn't affect what we are trying to do here, but

          3        it preserves the status of those which have had debate

          4        through the legislative process.  The Housing Finance

          5        Agency Corporation was done just last session, as a matter

          6        of great debate.  So we don't want to do anything because

          7        it's not, quote, under the, quote, direct supervision of

          8        the Secretary of Community Affairs, that we do anything to

          9        jeopardize its ability to provide affordable housing in

         10        this state.

         11             So what I would suggest is what I would like to do is

         12        to finish debate, TP that, let me come up with some

         13        language, working with Mr. Corr, that we could put in

         14        there, that we are not jeopardizing those that are in

         15        existence.

         16             CHAIRMAN DOUGLASS:  Are you suggesting that at

         17        conclusion of the debate, you want to draft a schedule?

         18             COMMISSIONER NABORS:  Well, I think, eventually style

         19        and drafting will decide that, but I think we can put some

         20        language in here that it doesn't have retroactive effect

         21        constitutionally.  And ultimately we can deal with that in

         22        style and drafting.

         23             But what we don't want to do is have a majority vote

         24        on this floor with something that raises the question of

         25        the long-term authority of these agencies that are issuing



                                                                          76

          1        debt for protection of insurance and affordable housing.

          2             CHAIRMAN DOUGLASS:  Commissioner Corr.

          3             COMMISSIONER CORR:  Thank you, Mr. Chairman.  I would

          4        agree with the direction.  I'm not sure, though, that this

          5        proposal requires that kind of -- that kind of assurance.

          6        I think it's already -- that the proposal already

          7        addresses that.  Rather than temporarily passing it, maybe

          8        we could approve it now and style and drafting could deal

          9        with that issue.

         10             CHAIRMAN DOUGLASS:  Well, that could raise another

         11        issue.  Style and drafting can't alter any of these, they

         12        can only improve the language and maybe raise some points

         13        that we would have to come back on.  Am I right on that,

         14        Commissioner Barkdull?

         15             COMMISSIONER BARKDULL:  Yes, sir.  May I make a

         16        suggestion to Commissioner Corr?

         17             CHAIRMAN DOUGLASS:  Commissioner Barkdull.

         18             COMMISSIONER BARKDULL:  I would suggest to you, sir,

         19        that I would like to vote for this because I was a strong

         20        proponent of the 25 departments and I think there ought to

         21        by a direct line to the chief executive through that.  And

         22        I would like to support it, but in the present form I

         23        cannot support it unless there's -- and I would suggest a

         24        schedule provision that indicates what's going to happen

         25        to those agencies that would be impacted by this until



                                                                          77

          1        such time as the Legislature, by law, did something.

          2             Even if you fixed a sunset for those items that might

          3        force the Legislature to do it, that's fine with me, but I

          4        think Commissioner Nabors has raised a very good point.

          5        You are going to put a number of agencies, and we don't

          6        seem to know the number, but there's obviously a handful

          7        anyway, very important agencies, their status would be in

          8        serious consideration.  And I think it would be a problem.

          9             CHAIRMAN DOUGLASS:  Commissioner Henderson, you have

         10        been standing for awhile.  You are recognized.

         11             COMMISSIONER HENDERSON:  I was trying to draft that

         12        amendment with the schedule.  I don't think it will take

         13        us too long to do it.  And I would suggest to my

         14        colleague, Mr. Corr, who is winning this issue, if we TP

         15        this for a few minutes, see if we can draft some schedule

         16        language, and we'll bring it back to the floor.

         17             CHAIRMAN DOUGLASS:  Is that agreeable?  All right.

         18        We'll TP it until you have the amendment ready.  And then

         19        we'll come back to it after the next proposal, which is by

         20        Commissioner Freidin.  It's Proposal No. 11, which was

         21        approved by the committee on Declaration of Rights.  Would

         22        you read it, please?

         23             READING CLERK:  Proposal 11, a proposal to revise

         24        Article I, Section 22, Florida Constitution; providing

         25        that persons may not be deprived of their rights because



                                                                          78

          1        of gender.

          2             CHAIRMAN DOUGLASS:  Commissioner Freidin, you are

          3        recognized to explain the proposal and there's an

          4        amendment on the table which we can take up after you

          5        explain the proposal.

          6             COMMISSIONER FREIDIN:  Commissioners, it's time that

          7        the state of Florida explicitly recognizes in its

          8        Constitution the rights of women in our state.

          9        Historically women have enjoyed an inferior social and

         10        political position.  It's time that we recognized that

         11        that has begun to change and needs to continue to change.

         12             You know, it wasn't that long ago that women in our

         13        state and in our country didn't have the right to vote.

         14        And it wasn't that long ago that women in our state did

         15        not have the right to equal pay, did not have the right to

         16        own property, did not have many other rights that men have

         17        always enjoyed.

         18             If you read the Constitution of the state of Florida,

         19        there is no express mention of the rights of any of the

         20        rights of women in our state.  The rights of men have

         21        traditionally derived from our Constitution, but the only

         22        rights of women that are expressly stated in our state are

         23        those that are stated in the statutes.

         24             Seventeen other states have seen fit to put equal

         25        rights amendments in their Constitutions.  The



                                                                          79

          1        Constitution Revision Commission 20 years ago thought that

          2        it was a good idea, but because of -- for whatever

          3        reasons, the voters didn't.  But I think we have come a

          4        long way in the 20 years and I cannot imagine that there's

          5        really any controversy about assuring today that men and

          6        women have equal rights in our state.

          7             Women in our state have come a tremendous distance in

          8        the last 20 years, but we are not there yet.  Women are

          9        still earning 72 cents for every dollar that men earn.

         10        Women are not adequately represented in leadership

         11        positions, both private and public entities.  Women are

         12        not found in adequate numbers in upper management of

         13        corporations, in boardrooms, in law firm partnerships, et

         14        cetera.  And there is a proliferation of sexual

         15        harassment, domestic violence against women.  And other

         16        inappropriate conduct towards women.

         17             It is time for us to take a position to make a clear

         18        statement that women and men are equal in our state.

         19        There is some legislation that protects women in our

         20        state, but that legislation is not sufficient, it is not

         21        secure.  We don't know that it won't be changed some day.

         22        Equality for women is a constitutional concept whose time

         23        has come, it's time for us to recognize the need for this

         24        state to protect and cultivate equality for men and women,

         25        and to require equal obligations and responsibilities to



                                                                          80

          1        all of our citizens.

          2             Now, the original proposal, which is in your book,

          3        simply adds the word "gender" into Article I, Section 2,

          4        to the last sentence of Article I, Section 2, of the

          5        Constitution.  Having had discussion with many of our

          6        members this morning, I have personally concluded and

          7        would offer an amendment that the better way to achieve

          8        the goal here, which is a clear statement in our

          9        Constitution of equality for women, is to insert, after

         10        the word "persons" in the first sentence the words "female

         11        and male alike."  And with the amendment -- has it been

         12        handed out?

         13             CHAIRMAN DOUGLASS:  The amendment is on the table and

         14        you may now offer it.

         15             COMMISSIONER FREIDIN:  I would offer that amendment

         16        and urge that you pass it.

         17             CHAIRMAN DOUGLASS:  Read the amendment.

         18             READING CLERK:  By Commissioner Freidin, on Page 1,

         19        Line 13, after "persons," insert "female and male alike,"

         20        and on Page 1, Line 21, delete "gender."

         21             CHAIRMAN DOUGLASS:  As I understand that,

         22        Commissioner Freidin, what you have done is taken the word

         23        "gender" totally out of it and moved it back up in the

         24        front where you say all natural persons, men and women

         25        alike.



                                                                          81

          1             COMMISSIONER FREIDIN:  That's correct.

          2             CHAIRMAN DOUGLASS:  That is to clarify the fact that

          3        all natural persons are men and women alike.

          4             COMMISSIONER FREIDIN:  Female and male alike.

          5             CHAIRMAN DOUGLASS:  Correct, female and male alike.

          6        I stand corrected.  Commissioner Langley.  Commissioner

          7        Langley rises for a question, Commissioner Freidin yields.

          8             COMMISSIONER LANGLEY:  Commissioner Freidin, pardon

          9        my lack of knowledge, but is not a female a natural person

         10        today?

         11             COMMISSIONER FREIDIN:  As far as I know, yes.

         12             COMMISSIONER LANGLEY:  As far as you know.  You are a

         13        lawyer, you don't hide behind that I'm-not-a-lawyer-but

         14        preface that people use.

         15             COMMISSIONER FREIDIN:  I think so.

         16             COMMISSIONER LANGLEY:  Is not a woman a natural

         17        person today?

         18             COMMISSIONER FREIDIN:  Yes.

         19             COMMISSIONER LANGLEY:  You know, then the suspicion

         20        arises, why do we need this language?

         21             COMMISSIONER FREIDIN:  It is a matter of emphasis and

         22        it is a matter of an explicit recognition of equality.

         23             Traditionally, if we did not have the historical

         24        basis for male supremacy in our society, we probably

         25        wouldn't have to be dealing with this today.  If women had



                                                                          82

          1        always been allowed to vote, had always been allowed to

          2        make decisions for themselves, had always been allowed to

          3        own property, that would be a -- it would be unnecessary.

          4             But under the circumstances where women have not had

          5        equal opportunities to employment, women have not been

          6        able to have equal pay, women initially were considered

          7        property of their husbands or their families, we have got

          8        a long history of oppression of women.  And it's time that

          9        there be an explicit recognition that women are equal to

         10        men.

         11             COMMISSIONER LANGLEY:  This is under the Article I

         12        Declaration of Rights basic rights.  Can you tell me

         13        today, Commissioner Freidin, today what basic right is a

         14        female in the state of Florida being deprived of, today?

         15        History is history.

         16             COMMISSIONER FREIDIN:  You know, that is a good

         17        question, because I have -- this is something that I've

         18        been working on probably since I learned that I had been

         19        appointed to this commission.  I have talked to many

         20        people and asked, is there -- is there any specific right

         21        that has not been granted to women as a matter of law?

         22             And the answer that I've gotten back is -- well, I

         23        haven't been able to get anybody to answer the question,

         24        which leads me to conclude that in the last 20 years there

         25        have been numerous statutes that have been passed, society



                                                                          83

          1        has changed, practices have changed, but that doesn't mean

          2        that we are there yet.

          3             And while there are statutory grants of equality,

          4        there is no explicit constitutional grant of equality.

          5        This is as important -- this is important as a clear

          6        statement of public policy.  When my daughter reads the

          7        Florida Constitution, I want her to understand that she

          8        has equal rights to the boys in her class, and that she,

          9        when she is a woman, will have equal rights to the men

         10        that she lives with.

         11             COMMISSIONER LANGLEY:  Mr. Chairman, two other

         12        questions.  Again, Commissioner Freidin, being an

         13        attorney, tell me now, if an issue were before the court,

         14        how you would argue this proposed amendment any more than

         15        you would argue the all natural persons current language.

         16             COMMISSIONER FREIDIN:  I can't answer that without

         17        knowing what the issue is.

         18             COMMISSIONER LANGLEY:  And secondly, and maybe I like

         19        what you are doing because we certainly then could read

         20        into this that there will be no other minority business

         21        enterprise provisions where women are presidents of

         22        companies that are trying to be involved in state and

         23        local contracts.  Because I now -- you are explicitly

         24        saying that I have the same right to that minority

         25        business contract as the female does.  Is that the intent




                                                                          84

          1        of the proposal?

          2             COMMISSIONER FREIDIN:  I don't know anything about

          3        that issue.

          4             COMMISSIONER LANGLEY:  Well, isn't that a logical

          5        conclusion that you are saying then that all of these

          6        set-asides for female controlled and owned businesses will

          7        become unconstitutional because as a man, if you are equal

          8        to me, then I'm certainly equal to you in that regard; is

          9        that not a logical conclusion?

         10             COMMISSIONER FREIDIN:  This establishes equality.

         11             COMMISSIONER LANGLEY:  We have been looking for it

         12        for years.

         13             COMMISSIONER FREIDIN:  Right, we certainly have.

         14             CHAIRMAN DOUGLASS:  Further discussion?  Commissioner

         15        Sundberg.

         16             COMMISSIONER SUNDBERG:  Commissioner Freidin, a

         17        question.  Would you yield?

         18             COMMISSIONER FREIDIN:  Yes, sir.

         19             COMMISSIONER SUNDBERG:  In fact, if it was determined

         20        that any minority, whether it be women, were not in fact

         21        at this point in time, did not occupy equal status,

         22        certainly it would not make unconstitutional any

         23        set-asides or any other legislative attempts to bring

         24        women or any other minority to an equal position, would

         25        it?



                                                                          85

          1             COMMISSIONER FREIDIN:  I don't think this impacts

          2        that at all.

          3             CHAIRMAN DOUGLASS:  Any further discussion?

          4        Commissioner Riley, do you rise to speak for it?

          5             COMMISSIONER RILEY:  I do.  What a surprise.

          6             CHAIRMAN DOUGLASS:  No, ma'am.

          7             COMMISSIONER RILEY:  When I, oh, so many years ago,

          8        bought with my husband our first house, the contract said

          9        James B. Riley, et ux.  Now, this was in the mid-'60s.

         10        And of course I'm not a lawyer, nor was I then.  And there

         11        was a great chuckle around the room about oxes and uxes

         12        and so forth.  And then I understood quite well exactly

         13        what it meant.  So I think we have come a long way since

         14        then.

         15             I have, for many years, worked very hard at women's

         16        rights issues.  I have marched up this street in favor of

         17        the ERA.  I would like emotionally to see the ERA in here.

         18        And so -- I'm willing to say that that's not going to

         19        happen.  Emotionally then I would like to see the term

         20        "gender" in here, and yet I understand the fears and the

         21        disagreements with adding that term in the last sentence

         22        of Section 2 of Article I of our Constitution.  But I'm

         23        willing even to forego that.

         24             But I think it's time that we recognize specifically

         25        the women in this state.  And we look around at the women



                                                                          86

          1        that are in this room, of which we are still yet a

          2        minority, but there is not one of us that have not been

          3        the first to have done something, or the first to have

          4        been on that board, or the first to have been president of

          5        that organization, as a woman.  There's not one of us that

          6        hasn't been in that position, so we are getting there.

          7             We look around the room at the pictures and we see

          8        one woman and one whose picture will be up there, and we

          9        realize still the inequality of what time and history has

         10        brought us.  But it's time, Commissioners, that we

         11        recognize the women in this state.

         12             And I would remind us, as we voted for national

         13        origins to be added, that what was said then is that this

         14        identifies those who should be protected from

         15        discrimination.  And I would suggest that we can do

         16        certainly no less for the women in this state.  It's time

         17        that we recognize them, and it is time that we put the

         18        emphasis and put exactly what we were talking about in

         19        that category, that we add female along with male in this

         20        part of the Constitution.  And I hope we will vote for it.

         21             CHAIRMAN DOUGLASS:  Further discussion.  Commissioner

         22        Connor.

         23             COMMISSIONER CONNOR:  Mr. Chairman, I would like to

         24        make some remarks, and then make an inquiry of the

         25        sponsor, if I may.



                                                                          87

          1             CHAIRMAN DOUGLASS:  You have the floor.

          2             COMMISSIONER CONNOR:  Mr. Chairman, I support equal

          3        rights for women.  And I believe that they are natural

          4        persons entitled to equality of the law, and are on an

          5        equal footing with, men and should be on an equal footing

          6        with men in terms of their rights in the Constitution and

          7        in terms of the natural rights that we have been endowed

          8        with by our creator.

          9             I had grave concerns about the original proposal,

         10        because, as we all know, we must read language in the

         11        context of the document, in the context of court

         12        decisions, and in the context of our times.  The concern

         13        that I had and I had shared with the sponsor of this

         14        proposal and with Commissioner Riley was that raised by

         15        the Hawaii Supreme Court in the case of Bear vs Luan.

         16             In that case, the court held that where the term

         17        sex -- in this case, as originally proposed, it was

         18        gender -- was included along the list of classifications

         19        which could not be discriminated against, that when that

         20        amendment, that explicit amendment to the State

         21        Constitution was interpreted in light of the equal

         22        protection clause of the Federal Constitution, the effect

         23        was to create a presumption that the statute that limited

         24        marriage in Hawaii to heterosexual marriages was

         25        unconstitutional under the Federal Constitution, and under



                                                                          88

          1        the State Constitution.

          2             So my concern has been, that as we dealt with the

          3        so-called gender issue in the context in which it was

          4        originally introduced, and in the context in which the

          5        original proposal was introduced, that we would likely

          6        pave the way for the legalization and authorization of

          7        same sex marriages in this state, particularly in light of

          8        Article I, Section 23, the explicit privacy clause that we

          9        have.  And if I were counseling someone in this regard and

         10        they were to ask me, what would that likely yield, I would

         11        say, we may very well pave the way in that regard.

         12             It has been my desire and my intention to divorce the

         13        issue of same sex marriages from gender equality.  I think

         14        that the sponsor agrees and I believe Commissioner Riley

         15        agrees that those two are very different issues.  Am I

         16        correct in that understanding?

         17             COMMISSIONER FREIDIN:  You are.

         18             COMMISSIONER CONNOR:  Do you affirm that likewise,

         19        Commissioner Riley?

         20             COMMISSIONER RILEY:  (Nods affirmatively.)

         21             COMMISSIONER CONNOR:  So what I am suggesting is that

         22        inasmuch as when one introduces into the last sentence of

         23        that provision of the Constitution a new classification,

         24        which then yields a heightened scrutiny and which then

         25        yields a standard by which laws are evaluated on whether



                                                                          89

          1        or not there is a compelling interest and whether or not

          2        they have been narrowly tailored to accomplish that

          3        interest, the sponsor agreed that inasmuch as that was not

          4        her intent, not to even create an issue about the

          5        legalization of same sex marriages, the question arose

          6        about how can we affirm our commitment for equal rights to

          7        women without opening the door to these unintended

          8        consequences.  We have talked about that and we have had

          9        no small amount of discussion and debate about that.

         10             I believe that the term "all" is all-inclusive.

         11        Indeed, one might implicitly read this language under

         12        Article I, Section 2, as -- where it says, all natural

         13        persons are equal before the law, it could easily be read,

         14        all natural persons, male and female, young and old, rich

         15        or poor, black or white.  I understand the dynamic tension

         16        that exists within our society and I understand and am

         17        sympathetic to women who feel that they have been

         18        discriminated against inappropriately and improperly

         19        through state action.  And I'm opposed to that.

         20             Inasmuch as the sponsor acknowledges that this

         21        proposal shall not and is not in any way intended to

         22        create a right of same sex marriages and inasmuch as there

         23        is no change in this amendment, the amendment under

         24        consideration, to the last sentence of Article I, Section

         25        22 -- excuse me, Section 2, which reads, no person shall



                                                                          90

          1        be deprived of any right because of race, religion or

          2        physical handicap, it is my view that this simply -- that

          3        the proposal simply amplifies that "all" includes all of

          4        us, female and male alike.

          5             And that there is no danger, and there is no intent

          6        by the explicit observation of the head of the -- what's

          7        your group, the Florida --

          8             (Off-the-record comment.)

          9             COMMISSIONER CONNOR:  -- the Florida Commission on

         10        the Status of Women, and the sponsor of this proposal.

         11        And so I will vote in support of the amendment and

         12        encourage others to do so.  I believe that we should

         13        affirm the equality of men and women in our society.  And

         14        I believe that we should take up the issue, to the extent

         15        it's going to come up at all, of same sex marriages and

         16        sexual orientation as a separate and distinct issue.

         17             And I believe -- and I welcome hearing from other

         18        members on their issue about the intent, because it is my

         19        belief and my understanding of this body that this body

         20        deems those to be separate issues which ought to rise or

         21        fall separately on their own merit.

         22             CHAIRMAN DOUGLASS:  All right.  It's my understanding

         23        that the sponsor and also the people who spoke for this

         24        have assured the commission that that concern of yours is

         25        not a concern in this amendment.  And unless somebody



                                                                          91

          1        objects, we are going to put that on the record for future

          2        posterity.

          3             COMMISSIONER CONNOR:  That's important to me and I

          4        think that's important to the separate considerations of

          5        these very important issues.

          6             CHAIRMAN DOUGLASS:  Are you offering that as a

          7        separate proposal?

          8             COMMISSIONER CONNOR:  No, sir, I'm not.  I'm offering

          9        and it's my understanding that the court -- excuse me,

         10        that the Chair has affirmed the intent of this body that

         11        those are separate and distinct issues.

         12             CHAIRMAN DOUGLASS:  They are not embodied in this

         13        particular proposal?

         14             COMMISSIONER CONNOR:  Yes, sir.

         15             CHAIRMAN DOUGLASS:  Thank you, then.  We are on the

         16        proposal.  Commissioner Mills was up first, Commissioner

         17        Langley.  Commissioner Mills, you can go.

         18             COMMISSIONER MILLS:  Mr. Chairman, would Commissioner

         19        Freidin yield for a question?

         20             CHAIRMAN DOUGLASS:  Yes.

         21             COMMISSIONER MILLS:  I just want to clarify for the

         22        record and --

         23             CHAIRMAN DOUGLASS:  Wait a minute, we haven't adopted

         24        the amendment.  All in favor of the amendment, please say

         25        aye; opposed?



                                                                          92

          1             (Verbal vote taken.)

          2             CHAIRMAN DOUGLASS:  The amendment is adopted.  Now we

          3        are on the proposal as amended.

          4             COMMISSIONER MILLS:  First, I think Mr. Connor is

          5        right in his interpretation, he has developed his record.

          6             The other issue that I wanted to clarify with

          7        Commissioner Freidin is it seems to me part of your intent

          8        by defining more explicitly natural persons to include

          9        female and male is some recognition of historical unequal

         10        treatment of females in a society.

         11             COMMISSIONER FREIDIN:  That's very correct.

         12             COMMISSIONER MILLS:  And it isn't your intention, is

         13        it, to try to declare unconstitutional any continuing

         14        remedial actions to remedy unequal treatment as it would

         15        currently exist?  In other words, if discrimination

         16        currently exists, it isn't your intention to do away with

         17        programs that are intended to eliminate that

         18        discrimination.

         19             COMMISSIONER FREIDIN:  I thank you for clarifying

         20        that.  That is absolutely not my intention.

         21             CHAIRMAN DOUGLASS:  Okay.  Anybody else want to know

         22        what is not the intention?  Commissioner Langley.

         23             COMMISSIONER LANGLEY:  I just want to speak against

         24        the proposal.

         25             CHAIRMAN DOUGLASS:  This might get right to the



                                                                          93

          1        subject.

          2             COMMISSIONER LANGLEY:  It might, yes.  First, let me

          3        tell you an interesting little political story of my own.

          4        When I first ran for the House of Representatives in 1972,

          5        soon-to-be Senator Glisson had been in the Legislature.

          6        And we had a dinner by the Women's Business and

          7        Professional Group.  And we were all invited to this

          8        dinner to speak to them.  And on our plate was a little

          9        commitment form that said, if elected, I will support the

         10        ERA amendment.  And I at that time had never heard of it.

         11             And relying on my veteran representative, then Jim

         12        Glisson, I said, Jimmy, what is that?  Oh, that ain't

         13        nothing, he said.  It passed -- and it did -- it passed

         14        the House last year 116 to nothing, but the Senate never

         15        took it up, it ain't nothing, go on and sign it.  Those

         16        were his words.  Boy, was that easy.

         17             The next ensuing years in the Legislature were some

         18        of the most emotional, hard-fought, tear-jerking,

         19        threatening things you have ever seen about the Equal

         20        Rights Amendment.  And I think the Legislature either by

         21        inaction or positive negative action killed it five or six

         22        times in that period of time.

         23             And I was put in the position of having to explain to

         24        the BPO, whatever it was, the Business and Professional

         25        Women, why I didn't support ERA.  And one was that I never




                                                                          94

          1        knew it was fraught with so many problems as were raised

          2        by the people over the ensuing years.

          3             Now, you-all are trying to establish legislative

          4        intent, Mr. Connor, and then Mr. Mills was afraid that

          5        something might have been established so he tried to undo

          6        that with his question to Ms. Freidin.  News item:  We are

          7        not the Legislature, we are not the Legislature.  We are

          8        not passing a law.  It does not make one iota of

          9        difference what we intend to do because 2 million people

         10        or 2 million people are going to vote on this law, and we

         11        don't know what they think it says.

         12             I.e., the Florida Lottery.  How many people voted for

         13        the Lottery because it is going to be used to enhance

         14        education?  Almost everybody, that's how it was sold.  Was

         15        it?  Well, some of it was; some of it wasn't.  What was

         16        the intent?  It doesn't make a bit of difference on this

         17        kind of a proposal.

         18             And, again, the other argument that we are going to

         19        hear more and more as time draws to our conclusion, is if

         20        this doesn't do anything, i.e., I'm sorry, I'm so

         21        ignorant, I thought women were natural people.  Sometimes,

         22        not too normal, but I thought they were natural.  If they

         23        are by law natural and we are not doing anything, does it

         24        meet the top five considerations?  Is this the kind of

         25        thing we want to occupy on the ballot as the top five that



                                                                          95

          1        we are that concerned with if it does nothing?

          2             You know, what is it, Shakespeare, I suggest the lady

          3        protests too much.  Something -- you know, it either does

          4        something and it's wrong or it doesn't do anything and we

          5        shouldn't consider it anyway.  So anyway, with those

          6        concerns, I don't intend to support it.  Thank you.

          7             CHAIRMAN DOUGLASS:  All right.  Any further

          8        discussion or debate?  If not, you can close, if you would

          9        like, Commissioner Freidin.

         10             COMMISSIONER FREIDIN:  I think every person that's

         11        risen to speak in favor of this has said it's time.  And I

         12        think it is time.  I think that there are some times when

         13        it's just as important to say something and I think this

         14        is one of them.  And I urge you to vote yes.

         15             CHAIRMAN DOUGLASS:  All right.  You ready to vote?

         16        Unlock the machine.

         17             (Vote taken and recorded electronically.)

         18             CHAIRMAN DOUGLASS:  Lock the machine and record the

         19        vote.

         20             READING CLERK:  Twenty-five yeas and 4 nays,

         21        Mr. Chairman.

         22             CHAIRMAN DOUGLASS:  It is adopted.  We'll now go to

         23        Proposal No. 2.  Commissioner Sundberg, we are going to

         24        revert down back to the top of the special order to

         25        Proposal No. 2 by you.  I understand that you are prepared



                                                                          96

          1        to go forward with that.

          2             COMMISSIONER SUNDBERG:  Yes, Mr. Chairman, thank you.

          3             CHAIRMAN DOUGLASS:  Just a moment.  Commissioner

          4        Freidin, did you want to withdraw?

          5             COMMISSIONER FREIDIN:  I was rising to withdraw

          6        Proposal No. 86.

          7             CHAIRMAN DOUGLASS:  Without objection, Proposal 86 is

          8        withdrawn.  I think you take the position that you covered

          9        that in the previous one.

         10             COMMISSIONER FREIDIN:  We covered that.

         11             CHAIRMAN DOUGLASS:  We'll now go to Proposal 174 by

         12        Commissioner Sundberg, which was disapproved -- no, excuse

         13        me, it was approved by the committee on Declaration of

         14        Rights.  Would you read it?  Proposal No. 2.

         15             READING CLERK:  Proposal 2, a proposal to revise

         16        Article I, Section 2, Florida Constitution; providing for

         17        citizens to enjoy equal opportunity to employment,

         18        housing, public accommodations, public education, and

         19        other benefits and authorizing governmental agencies to

         20        take actions to remedy the effects of past discrimination

         21        in certain areas.

         22             CHAIRMAN DOUGLASS:  All right.  If everybody will

         23        give your attention please, we are going to have the

         24        presentation of this by Commissioner Sundberg.  Proposal

         25        No. 2, you have heard it read.  Commissioner Sundberg, you



                                                                          97

          1        have the floor, sir.

          2             COMMISSIONER SUNDBERG:  Thank you, Mr. Chairman.

          3        This is a singularly propitious time for this proposal to

          4        come before this body, immediately after the discussion we

          5        have just had with respect to the rights of women.

          6        Just -- this proposal was, I think, submitted as a public

          7        or a -- I moved it as a public proposal by the NAACP.  But

          8        it obviously has much greater reach than simply to deal

          9        with past discrimination against African-Americans.

         10             I suggest to you that this proposal does nothing more

         11        than make express that which we, in the previous debate

         12        just held, was determined to be the intent of the language

         13        with respect to Commissioner Freidin's proposal.  And that

         14        is simply that that language was not intended in any way

         15        to eliminate or make unlawful programs currently in place

         16        or which may come to pass which are intended to remedy the

         17        effects of past discrimination, whether it be against

         18        women, and women have been discriminated against.  They

         19        are not on a parity today, they are becoming so.

         20             But all this provision does is permit agencies of

         21        government, it doesn't say they shall, but says they may

         22        enact programs and take actions necessary to remedy the

         23        present effects of past discrimination, in housing,

         24        employment, public accommodations, public education,

         25        purchase of goods and services, and the expenditure of



                                                                          98

          1        public funds.

          2             So there's nothing very revolutionary or

          3        extraordinary about this language.  It simply makes that

          4        express, which we all agreed, I think, in the earlier

          5        debate, should be, if it is not, should be the state of

          6        the law.  You know, when this subject matter -- and so

          7        this is not aspirational, just like I don't perceive

          8        Commissioner Freidin's proposal to be aspirational.  I

          9        think it will be operative.

         10             And if there are concerns that were raised by

         11        Mr. Langley, in other words, does this mean that you can't

         12        have affirmative action programs to aid women in reaching

         13        a state of equality, this says expressly, no, you -- it

         14        will not affect those programs.  One hears constantly

         15        affirmative action, why affirmative action, I never did

         16        anything to discriminate against an African-American, I

         17        never did anything to discriminate against women, I never

         18        did anything to discriminate against an Hispanic, I never

         19        did anything to discriminate against an Asian.  And why

         20        me?

         21             Well, it is because of this historical basis upon

         22        which groups and minorities have been oppressed, they have

         23        been deprived of their fair share of the largess that this

         24        state has in such great abundance.  And it is just as

         25        those of us who do not make up minority groups have had



                                                                          99

          1        the legacy of the benefits of history, there are those

          2        minorities who have had the disadvantage, the legacy of

          3        the disadvantage of history.  And it's quite proper for us

          4        to support programs that will set that right.  And as of

          5        this day, it has not been set right and this proposal is

          6        intended to set things right.

          7             I suggest to you that we need this proposal.  A

          8        representative candidate from central Florida, who is now

          9        a member of Congress, appeared before us in Fort Myers and

         10        urged upon us a proposal that talked about equality.  But

         11        it is clear that the intent of that proposal was to

         12        eliminate any programs leading to affirmative action in

         13        favor of any disadvantaged class or group within the

         14        state.  I mean, he is proposing it.  He has proposed it

         15        nationally.  There are those out there who wish to

         16        eliminate programs that are in place now.

         17             And we are just better than that in Florida.  And I

         18        want us to express it in our Constitution.

         19             (Off-the-record comment.)

         20             COMMISSIONER SUNDBERG:  I'm sorry, no, I have not

         21        seen the amendment by Mr. Langley.

         22             (Commissioner Thompson assumes the chair.)

         23             COMMISSIONER THOMPSON:  Commissioner Langley, do you

         24        wish to be recognized on your amendment now?

         25             COMMISSIONER LANGLEY:  Yes, sir, if Mr. Chairman and



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          1        everybody has it.

          2             CHAIRMAN DOUGLASS:  Read Commissioner Langley's

          3        amendment.

          4             READING CLERK:  By Commissioner Langley, on Page 1,

          5        Line 28, after the word "citizenship" delete all of Lines

          6        28, 29, 30, 31 and on Page 2, delete all of Lines 1, 2, 3,

          7        and 4.

          8             CHAIRMAN DOUGLASS:  Commissioner Langley is

          9        recognized to explain the amendment.

         10             COMMISSIONER LANGLEY:  Thank you, Mr. Chairman.

         11        Fellow Commissioners, basically what that says is it

         12        leaves the language in that Commissioner Sundberg has

         13        offered as far as equality of opportunity to employment,

         14        housing, accommodations, et cetera.  It strikes out that

         15        part of the proposal which would put into our Constitution

         16        affirmative action.

         17             You know, we overuse level playing field.  Everybody

         18        thinks that's a fair proposition.  I think that's a fair

         19        proposition.  I would admit in the past that playing field

         20        has not always been level, that the good ol' boy operation

         21        in cities and counties and the state Legislature resulted

         22        in some very unfair discrimination not only to blacks, not

         23        only to women, not only to Hispanics but frankly in a lot

         24        of cases, poor people, black, white, yellow or red that

         25        were discriminated against, without any racial



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          1        consideration.

          2             The reason you can't fairly do this, in my opinion,

          3        government, which this applies to, be they the community

          4        colleges or the state or the counties or the city, there

          5        is a limited amount of resources available.  We call it

          6        the pie theory.  And if you are going to entitle someone

          7        to a larger piece of that pie, then unfortunately, someone

          8        else's piece of that pie is going to be smaller.

          9             You cannot reward -- out of a limited pot, you can't

         10        reward one participant without punishing another

         11        participant.  Commissioner Sundberg, I never owned a

         12        slave.  And I look through my family tree, my poor ol'

         13        folks were sharecroppers in South Georgia.  They were

         14        probably not treated as well as some of the slaves, but

         15        that's immaterial.  Why are you going to punish me today

         16        for what they did?

         17             And if you read that language, Commissioner Sundberg,

         18        I think you may well have opened the door for reparation,

         19        not just for future rights but for past reparation to

         20        anyone who might feel that they have been discriminated

         21        against in that area.

         22             Most of you I know either required or out of pure

         23        amusement have read George Orwell's Animal Farm, you know,

         24        and it was a revolution of the animals against the farmer.

         25        And the whole theory of that and the banter was, all



                                                                          102

          1        animals are created equally and that was all good until

          2        they took over the farm and then they decided, if you

          3        recall in a later chapter, all animals are created

          4        equally, but some animals are more equal than other

          5        animals.

          6             We have been through the all animals are created

          7        equally.  We paid with blood in the streets to prove that

          8        all animals are created equally.  But now we want to go to

          9        step two and say, but some animals are more equal than

         10        other animals.

         11             Affirmative action is unfair.  It is not only unfair

         12        to the people who get deprived of the opportunity to bid

         13        fairly, it is unfair to the people who get it because it

         14        gives them a false sense of accomplishment that they

         15        haven't really earned.

         16             I'd like to tell you two real life examples.  One is,

         17        I represent a pipe manufacturer in Central Florida.  We

         18        were bidding on a job in Orlando, actually the county,

         19        Orange County, for doing the pipe for a project on the

         20        road extension.  We bid $468,000.  Our nearest competitor,

         21        a company from Texas who has a Florida plant, bid

         22        $486,000.

         23             A lady in Orlando who didn't own a piece of pipe, who

         24        never owned a piece of pipe, took the Texas bid and pasted

         25        her letterhead over it, you can still even see the outline



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          1        of the Texas company under her pasted-on letterhead and

          2        won the bid because she was a minority contractor.

          3             Our competitor supplied the pipe, our competitor did

          4        everything as if they had won the bid at $486,000 but they

          5        got the bid, they paid her some fee to get it for her, by

          6        using her minority status, and Orange County went on with

          7        that.

          8             That isn't fair.  That isn't fair to my client, that

          9        isn't fair to Orange County taxpayers.  But that happened

         10        and that was a real life example.

         11             I had another one.  When I was in the Legislature I

         12        finally got part of Highway 50 west of Clermont on the DOT

         13        list to get constructed.  The first section of it was a

         14        $5.5 million contract, a company from North Carolina won

         15        the contract, but they didn't meet the minority set-aside

         16        in it.  So as a last minute deal, they reached out to a

         17        friend of mine in Leesburg whose grandmother was an

         18        American Indian, he was a multimillion dollar contractor,

         19        but he had this small corporation that qualified as a

         20        minority because his grandmother was an American Indian.

         21             And I saw the correspondence from the North Carolina

         22        company to him, Dear, I won't mention his name, please

         23        find enclosed the plans for project so-and-so.  Please

         24        tell us how much of this you will do for 10 percent.  How

         25        is that for a good use of public money?  Just tell us how



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          1        much of this project you will take on for $550,000.

          2             That is not right and that is not fair.  We do not --

          3        I would like someone to tell me what this is going to cost

          4        the state, if indeed it opens reparation and I do indeed

          5        think it does if you read it carefully.

          6             To remedy the effects of past discrimination, the

          7        only way to really remedy it is start paying people that

          8        got deprived.  So we really need to look at this

          9        carefully.  You are all familiar when put to the people of

         10        California that Prop 209 passed and it is being enforced

         11        and probably would pass in the state of Florida if it were

         12        on the ballot.

         13             But again, it is not right, it is not fair, it is not

         14        necessary, and we sure don't want this in our

         15        Constitution.

         16             COMMISSIONER SUNDBERG:  Mr. Chairman, for a response.

         17             COMMISSIONER THOMPSON:  Yes, Commissioner Sundberg.

         18        Is this a question you want to respond to?

         19             COMMISSIONER SUNDBERG:  It was sort of a rhetorical

         20        question that was put.

         21             Commissioner Langley, I suggest to you that this

         22        cannot be the basis for reparations.  The word in Line 31

         23        says that agencies of government, college and university

         24        may take actions, it doesn't require anyone to take an

         25        action.  So that I suggest it could not form the basis for



                                                                          105

          1        reparations.

          2             You give us some anecdotal evidence and just like

          3        with any governmental programs, there are abuses.  That

          4        doesn't mean the program is bad, it means we should try to

          5        eliminate and control the abuses.

          6             You say to me it is not fair because when someone

          7        gets some share of the pie, someone else loses their share

          8        of the pie.  And boy is that right.  And so what we want

          9        to do, I assume, to remedy that is let's just keep the

         10        shares of the pie the way they are right now, that's the

         11        legacy that we're talking about here.  And all we are

         12        doing is saying to the extent that it is necessary to

         13        address past discrimination, past unfairness, that we have

         14        got to redistribute some pieces of this pie.

         15             Yes, that's what this would do and that's what ought

         16        to be done.  Because there is no question that some of us

         17        have had a much larger piece of this pie for a long time

         18        and the only way we are going to get the pie distributed

         19        in some sort of fair fashion amongst all of us who are

         20        citizens of this state is in fact to redistribute it.

         21             I will respond with an anecdotal event, or an -- not

         22        an event, but a situation.  I am singularly proud to be

         23        associated with Florida State University because it has

         24        had a policy, it has had a policy to encourage diversity

         25        at that university.  And everyone there supports it.



                                                                          106

          1             And it has led, it seems to me, to a more proper

          2        distribution of those resources and assets in a state

          3        university system.  And I don't see anybody who -- I have

          4        seen many, many people, many, many people who have been

          5        greatly advantaged by it, I don't see all of those people

          6        who have been disadvantaged by it.

          7             So I suggest to you, no, this is not going to call

          8        for reparations.  It says that agencies of governments and

          9        universities may take action to cure the effects of past

         10        discrimination.  It doesn't require anybody to do

         11        anything, it doesn't provide a cause of action or a right

         12        in anyone to cause any sort of reparations.

         13             (Chairman Douglass resumes the chair.)

         14             CHAIRMAN DOUGLASS:  Any further discussion?

         15        Commissioner Connor.

         16             COMMISSIONER CONNOR:  Mr. Chairman, if I may, I'm

         17        going to vote against the amendment and I'm going to vote

         18        against the proposal and I'd like to tell you why.

         19             In a very real sense if I may recharacterize what

         20        Commissioner Sundberg has said in effect is this little

         21        old bill just is a technical amendment to the

         22        Constitution, it doesn't really do anything.  It has

         23        profoundly far-reaching implications.

         24             Now by the way, I might add, that I didn't with

         25        respect to affirmative action, I didn't note in our



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          1        Legislative Committee when in effect the position had been

          2        positive by Republicans that they needed a period of

          3        affirmative action for the Legislature to redistrict to

          4        amend old prejudices and discriminations in the past

          5        before we went to an independent reapportionment

          6        condition, I didn't sense any amenability to that concept

          7        by the sponsor of this proposal.  But my concern is far

          8        greater than that and let me share it with you.

          9             When we talk about employment, housing, I think there

         10        are tremendous First Amendment implications that flow out

         11        of this proposal.  One of the benefits of citizenship that

         12        we enjoy in this state and in this country is the right to

         13        worship in accordance with the dictates of our conscience.

         14        I'm a Baptist, I worship in the tradition of the Baptist

         15        Church.

         16             Many of my friends are Catholics and they worship in

         17        the tradition of the Catholic Church.  And in the

         18        tradition of the Catholic Church, because of their

         19        particular theological convictions, only males are

         20        qualified to be priests.

         21             There are some denominations whose theological

         22        scruples would prevent them from hiring a homosexual to

         23        work in their denomination because they believe that

         24        conduct to be morally abhorrent and a sin.  There are

         25        people with religious convictions who in renting out a



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          1        room in their house would not want to rent it to a

          2        homosexual couple or to a homosexual because of their own

          3        personal, religious and moral scruples.

          4             This proposal may be one of the broadest, most

          5        far-reaching, most intrusive proposals to hit the floor of

          6        this body as we discuss it.  The implications are

          7        enormous.  They are extraordinary.  Without regard to

          8        dealing with the affirmative action issue, which in my

          9        estimation the affirmative action matter ought to be dealt

         10        with on a legislative basis.

         11             I was opposed to the proposal that would say no

         12        affirmative action would be included in the Constitution;

         13        I'm opposed to the proposal that says we can have

         14        affirmative action in the Constitution.  That ought to be

         15        a legislative issue that people address, in my judgment,

         16        through the legislative process.

         17             But the implications of Commissioner Sundberg's

         18        proposal are absolutely staggering.  They will turn upside

         19        down in every arena of this state the convictions of many,

         20        many people which are rooted on moral and theological

         21        grounds.  This goes way beyond state action, way, way

         22        beyond state action.

         23             It will produce a hue and cry, Commissioner Sundberg,

         24        the likes of which you ain't heard yet.  It will engender

         25        profound opposition that will have a tainting effect and a



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          1        debilitating effect on other proposals within our

          2        Constitution.

          3             I will say this, as you all know, I am not one who is

          4        averse to controversy and I believe that we ought to do

          5        what's right and not what is politic and what is popular.

          6        There are some of you who have expressed with regard to

          7        issues that I was particularly supportive of, such as the

          8        right to life and parental consent and opposed to partial

          9        birth abortion, oh, my goodness, this whole agenda that we

         10        put forth is going to be torpedoed because of these

         11        controversial issues.

         12             Well, I'm just saying, you might want to heed your

         13        own counsel or at least take it into account as you

         14        evaluate it because the implications of these proposals,

         15        even as amended, I would submit to you are staggering and

         16        we should not change the Constitution in this regard.

         17             CHAIRMAN DOUGLASS:  Further debate?  Commissioner

         18        Mathis.  Commissioner Langley, you can rise for a

         19        question, you have already debated.  Let's let

         20        Commissioner Mathis speak first and then I'll call on you.

         21        Commissioner Mathis, you have the floor.

         22             COMMISSIONER MATHIS:  There is a principle known as

         23        alchemy that says that the more you participate, the

         24        larger the pie.  I believe in that.  I think that if we in

         25        Florida open up participation to all Floridians, and seek



                                                                          110

          1        to remedy those past acts that we have taken not just to

          2        discourage participation but to shut out whole groups of

          3        people, that we in Florida will be better.

          4             And Commissioner Langley has shared some anecdotal

          5        evidence of some misuses of minority women business

          6        programs.  But I'll tell you, I have devoted my law

          7        practice to assisting minority and women businesses to

          8        grow.  Because I believe that the economic viability of

          9        the African-American community is directly connected to

         10        our ability to grow and develop minority businesses.

         11             I have got two examples.  One, I had a client,

         12        started out with four people; two women and a receptionist

         13        and a secretarial assistant.  They were electrical

         14        contractors.  In three years, because of minority business

         15        programs, they grew to employing over 40 people and

         16        providing direct services to a number of local government

         17        entities.

         18             I have also got a client who had an eighth grade

         19        education who started out in a service business providing

         20        skycap services, personal.  He now employs over 200 people

         21        throughout this state.  He got a lot of his start through

         22        these minority and women business programs.

         23             Commissioner Langley, while you cite abuses, I cite

         24        successes in the things that we want to encourage as a

         25        state.



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          1             Less than 3 percent of all governmental contracts go

          2        to set-aside programs.  We are not talking about

          3        disenfranchising and taking contracts broadly away from

          4        nonminority, nonwomen contractors with our state.  But

          5        what we are saying as a policy of this state is that

          6        agencies may take action to remedy past discrimination.  I

          7        think there is no more laudable purpose than for us to

          8        encourage this type of activity.

          9             And I fully support this proposal.

         10             CHAIRMAN DOUGLASS:  Commissioner, I'm going to

         11        recognize Commissioner Planas.  He has informed me that he

         12        has an emergency situation that requires him to leave and

         13        that his accountant, who happens to also be a member of

         14        this body, has to go with him or he might not get back.

         15        So, Commissioner Planas, I recognize you.

         16             COMMISSIONER PLANAS:  I thank you very much,

         17        Mr. Chairman.  I rise here for two or three items in here

         18        before I leave and I hope I have your indulgence because I

         19        have to leave for some very important business matters

         20        they just called me on.

         21             I like this proposal but -- I like this proposal, but

         22        I'm also worried as Commissioner Langley is.  I am afraid

         23        that it is going to create a tremendous amount of burden

         24        that is unnecessary in the courts and it is going to be

         25        creating a tremendous amount of problems.  But I will live



                                                                          112

          1        with the language, I just want to say that.

          2             I also rise in here because I have to leave and I

          3        wanted to spend as much time in here because I have

          4        something that I wanted to support and before leaving I'd

          5        like to very much support that.  I am hoping that you will

          6        consider very much the Chairman Douglass Proposal 16 for

          7        public financing.  I do believe in this.

          8             So, Mr. Chairman, thank you very much.  I'll see you

          9        next week.

         10             CHAIRMAN DOUGLASS:  Thank you.  And, Mr. Argiz, you

         11        are going to accompany him as I understand it.

         12             COMMISSIONER ARGIZ:  Yes, I am, Mr. Chairman.  I

         13        don't know if it is the proper time, but I did want to

         14        have a, move a motion to reconsider.  Would it --

         15             CHAIRMAN DOUGLASS:  You can move it, yes.

         16             COMMISSIONER ARGIZ:  Okay.  Having voted on the

         17        prevailing side yesterday, I move to reconsider the vote

         18        by which Proposal 107 failed.

         19             CHAIRMAN DOUGLASS:  Proposal 107 was the proposal

         20        that dealt with parental consent; is that it?

         21             COMMISSIONER ARGIZ:  Yes.

         22             CHAIRMAN DOUGLASS:  There has been a motion to

         23        reconsider Proposal 107.  You voted with the prevailing

         24        side; did you not?

         25             COMMISSIONER ARGIZ:  Yes.



                                                                          113

          1             CHAIRMAN DOUGLASS:  We will take it up right now.

          2             COMMISSIONER LANGLEY:  No, sir.  That is

          3        automatically put off to the next meeting of the

          4        commission.

          5             CHAIRMAN DOUGLASS:  He is not going to be here.

          6             COMMISSIONER LANGLEY:  Well he doesn't want it now.

          7             CHAIRMAN DOUGLASS:  They tell you you don't want it

          8        now; is that true?

          9             COMMISSIONER LANGLEY:  He just wanted it for the

         10        record as I understand it.

         11             COMMISSIONER ARGIZ:  I don't want it now.

         12             CHAIRMAN DOUGLASS:  Thank you, Commissioner Langley.

         13             COMMISSIONER RUNDLE:  Mr. Chairman, point of order.

         14        Do we vote on the motion for reconsideration?

         15             CHAIRMAN DOUGLASS:  We will vote on it tomorrow,

         16        tomorrow morning.  Or it will be on special order tomorrow

         17        morning; is that right, Commissioner Barkdull?  Matters on

         18        reconsideration?

         19             COMMISSIONER BARKDULL:  Yes, sir, it will come up in

         20        the regular order of business.

         21             CHAIRMAN DOUGLASS:  Regular order of business, I

         22        should say.

         23             We will be back to the proposal that is under

         24        discussion at the moment, which is Proposal No. 2 by

         25        Commissioner Sundberg.  Any further discussion on that by



                                                                          114

          1        anybody that has not already discussed?  And you had a

          2        question, do you still have it, Commissioner Langley?  And

          3        who is the question directed to?

          4             COMMISSIONER LANGLEY:  Well it was to Commissioner

          5        Sundberg, but Ms. Mathis would be the same subject matter,

          6        Commissioner Sundberg.

          7             CHAIRMAN DOUGLASS:  Commissioner Mathis has the floor

          8        and yields to Commissioner Sundberg and you may question

          9        him.

         10             COMMISSIONER SUNDBERG:  I'm content to have

         11        Commissioner Mathis.  Do you wish to respond or wish me to

         12        respond?

         13             (Off-the-record comment.)

         14             CHAIRMAN DOUGLASS:  I'll tell you what we'll do, if

         15        you don't like his answer, you can get up and answer it.

         16             COMMISSIONER LANGLEY:  Mr. Commissioner, I'm amazed

         17        that people don't like you to bring up real life

         18        situations to argue a proposal because, as they say, when

         19        the rubber hits the road, that's what really happens.  A

         20        lot of things that you sit here and talk about, you talk

         21        about, but when a law is in effect and you can show living

         22        examples of what has happened, that's real.  You can call

         23        them anecdotal if you want.

         24             But I would like to ask Commissioner Sundberg.  These

         25        glowing stories, Ms. Mathis' client that grew from four



                                                                          115

          1        ladies in an electrical firm to employing 40 and the other

          2        people, that's all well and good, but who are we to punish

          3        the legitimate lower bidder who didn't get that job?  And

          4        for all we know, he may now be in bankruptcy.  Who knows?

          5        We don't care, we just want the minority business

          6        enterprise to have the job.

          7             That is what's unfair about it.  We don't talk about,

          8        we don't see -- you say Florida State University.  You

          9        don't see the kid that didn't get in law school, you don't

         10        see him, he is not there, although he is more qualified

         11        than some that did.  You don't see any dissent because he

         12        is not there.  And the contractors who don't get the jobs,

         13        they are not there.  We don't know what happens to them

         14        and frankly, we don't care, evidently.  But that's got to

         15        be considered.

         16             And you can talk about enlarging that pie all you

         17        want to, but, folks, that pie that we are talking about in

         18        this amendment is public tax dollars.  And if you are

         19        going to enlarge it, you are going to enlarge it at

         20        taxpayers' expense.  And it is not -- what it is is

         21        indirect welfare.  It is creating and giving welfare to

         22        somebody because you are using my tax money to reward a

         23        noncompetitive bidder.  And that's not a level playing

         24        field.

         25             COMMISSIONER SUNDBERG:  I perceive that as being a



                                                                          116

          1        rhetorical question.  But I'd like to yield, if I may,

          2        Mr. Chairman, to Commissioner Anthony who would like to

          3        respond to that.

          4             COMMISSIONER ANTHONY:  Mr. Chairman.

          5             CHAIRMAN DOUGLASS:  I'm sorry, I was --

          6             COMMISSIONER SUNDBERG:  May I yield to Commissioner

          7        Anthony to respond to Commissioner Langley's rhetorical

          8        question?

          9             CHAIRMAN DOUGLASS:  Yes, indeed.  Commissioner

         10        Anthony.

         11             COMMISSIONER ANTHONY:  It is rhetorical and I'm just

         12        going to give a response that's very direct.

         13             First of all, I think there is an assumption by your

         14        statement that one is not equally qualified because they

         15        were accepted into law school over an applicant that was

         16        not a minority.  That's not true always.  That does not

         17        make, make an assumption.  And I think that's part of what

         18        this discussion is about, Commissioner Langley, that you

         19        make an assumption that the Minority and Women's Business

         20        Enterprise Corporation is not as qualified as the other

         21        company, and that they only received the contract because,

         22        or the opportunity, because they were minority.

         23             And I think that that's part --

         24             COMMISSIONER LANGLEY:  That's not true.

         25             COMMISSIONER ANTHONY:  Well most of your statements,



                                                                          117

          1        I will tell you, most of your statements, even the extreme

          2        statement of saying and equivocating these programs to

          3        welfare programs, really alludes to you making a grave

          4        assumption that the student who is considered minority,

          5        whatever minority that may be, is not as qualified.

          6             And we can go on and on with examples, but I will

          7        tell you that we are not fighting in fact past

          8        discrimination with this proposal.  We are in fact

          9        fighting discrimination that exists today in the state of

         10        Florida.  We are in fact, as we dealt with education, we

         11        talked about aspirational statements that Commissioner

         12        Mills proposed.

         13             When I talk to African-Americans and other minorities

         14        throughout this nation and talk to them about Atlanta,

         15        talk to them about Los Angeles and other places, there is

         16        a feeling in Atlanta, Georgia that people of all cultures

         17        are welcome.  And there is a feeling by business practices

         18        and opportunistic public policy that this is a feeling

         19        that they want to call home.

         20             Many of our policies in our Constitution and public

         21        policy practices do not give that feeling.  And I think

         22        that that's what this is, as we noted in the educational

         23        proposal.

         24             But very specifically, the assumption that they are

         25        not as qualified is not a good assumption and I will tell



                                                                          118

          1        you that the minority and women business enterprise

          2        programs that are in place right now in this state are

          3        majority viable programs.  And we can't say that a few bad

          4        apples, as there are bad lawyers, as there are bad

          5        doctors, as there are bad teachers, but that does not mean

          6        the entire profession is a bad profession.

          7             I can give you examples of major majority

          8        construction companies that are late on government

          9        contracts, they were late on the Orange County courthouse,

         10        they were late on the Palm Beach County courthouse, they

         11        were late in Polk County, which I don't know, has it even

         12        opened yet?  But do we say that, let's change the whole

         13        culture of our state because the majority contractors did

         14        bad work?  Should we change our whole program?  I say not,

         15        Commissioner Langley.

         16             And I think that we should work on our assumptions

         17        that we have made about some of these efforts.

         18             CHAIRMAN DOUGLASS:  Commissioner Mills.

         19             COMMISSIONER MILLS:  Mr. Chairman, will Commissioner

         20        Sundberg yield for a question?

         21             CHAIRMAN DOUGLASS:  I'm sure he will.

         22             COMMISSIONER SUNDBERG:  I will, sir.

         23             COMMISSIONER MILLS:  In looking at this and

         24        considering what effect this has on the current law, and

         25        the evolution of, frankly, the whole affirmative action



                                                                          119

          1        area, not all affirmative action programs to me make

          2        perfect sense.  There have been a lot of problems with

          3        various affirmative action programs.

          4             The language as I understand you have which says, to

          5        remedy the present effects of past discrimination, as I

          6        understand it, that is the United States Supreme Court's

          7        interpretation of the equal protection clause, which is to

          8        say under certain limited circumstances, programs which

          9        could be described as affirmative action are appropriate

         10        and constitutional, not all programs to deal with or

         11        respond to all past historical effects of discrimination.

         12             So that actually it only deals with current,

         13        provable, existing remedial discrimination.

         14             COMMISSIONER SUNDBERG:  That's absolutely correct.

         15        The United States Supreme Court, arguably, said that you

         16        may utilize actions and programs (A) to, in an educational

         17        setting to promote diversity amongst the student body.

         18        There have been several courts, United States Courts of

         19        Appeals, who have said that that is a violation of equal

         20        protection.

         21             But the courts have consistently held that if there

         22        is demonstrable present effects of past discrimination,

         23        that it is constitutionally permissible to employ state

         24        action to remedy those present effects of past

         25        discrimination.  So the answer is yes, sir.



                                                                          120

          1             CHAIRMAN DOUGLASS:  All right.  Any further --

          2        Commissioner Smith.

          3             COMMISSIONER SMITH:  Thank you, Mr. Chairman.  Today

          4        when I woke up, I was a little apprehensive, knowing that

          5        that discussion would come up because every time it comes

          6        up, as Commissioner Connor points out, if it gets on the

          7        ballot there is in fact a hue and cry.

          8             And I read my Daily Word this morning, which some of

          9        you probably read.  And the first paragraph of the Daily

         10        Word today says, How often do I hold back when attempting

         11        to accomplish a goal or a dream because I question whether

         12        I am smart enough, brave enough or prepared enough?

         13             Not only is this a propitious occasion to have this

         14        civil discussion on an issue people obviously disagree on,

         15        but it is also important because today is the 69th

         16        birthday of Dr. Martin Luther King, Jr.  When a disabled

         17        student stands up for accessible public accommodations,

         18        she stands up for us all.  When a Jewish man stands up

         19        against the desecration of a synagogue, he stands up for

         20        us all.  When a Cuban woman stands up against

         21        totalitarianism, she stands up for us all.

         22             When a woman stands up to try to crack the glass

         23        ceiling that's been documented in corporate America, and I

         24        would suggest if they did a study would document it's even

         25        in government, she stands up for us all.  When an



                                                                          121

          1        African-American stands up to fight against housing

          2        discrimination and discrimination in educational

          3        opportunities, discrimination as outlined in this

          4        amendment, he stands up for us all.

          5             I am one, Commissioner Langley, who agrees with you

          6        that oftentimes some of these esoteric discussions don't

          7        take into account real life situations.  And I know for a

          8        fact that some of the real life horrors that you have

          9        talked about have happened, they have happened where you

         10        are, they have happened where I am.  But they haven't just

         11        happened with regard to minority businesses.  We have seen

         12        indictments of majority businesses which go beyond just

         13        incompetence or taking advantage of a situation, but also

         14        go to the fundamental integrity of the process.

         15             And, Commissioner Langley, you are right that

         16        Proposition 209 did pass in California.  We have never in

         17        Florida striven to follow California as a government, as a

         18        state, as a people.  I am sure you would have pointed out,

         19        had you had more time, that the, that proposal in Houston

         20        failed more recently.

         21             And, yes, I am an example of the rubber meeting the

         22        road.  My mother almost died on the way to the hospital

         23        because in Miami in 1947 there was only one hospital where

         24        black babies could be born, and we lived far away from it.

         25             I went to an all black elementary school, all black



                                                                          122

          1        high school and applied to the University of Florida.  And

          2        my application was sent back because I couldn't attend the

          3        University of Florida.  So fortunately we had Florida

          4        A & M University that welcomed me with open arms.

          5             While I can't speak for the Governor, I would imagine

          6        that one of the reasons I'm here is not because I'm the

          7        most qualified person to be here.  There are a lot of

          8        white people much smarter than me who could have been

          9        here, but I'm sure that the Governor said, while he might

         10        not be the brightest lamp, you know, out there, he may

         11        have something to contribute and I would like to have him

         12        and the people you represent participate too.

         13             Affirmative action should not be about unqualified

         14        people.  And where it is being done that way, you and me

         15        must work together to wipe that out.  It should not be

         16        against quotas.  Black folks would be the first, well

         17        along with Jews, to oppose quotas because quotas used to

         18        mean zero, that's a whole number, none.  Then in the '60s

         19        and '70s, it was one when we started seeing the issue of

         20        tokenism.

         21             And while I am concerned with you, please understand

         22        that people conveniently use those who have been left out

         23        as guinea pigs and scapegoats for arguments to maintain

         24        the status quo.

         25             In the Hopwood case in Texas where a white person won



                                                                          123

          1        the lawsuit because they were denied the right to

          2        admission, would you believe, as you have taught me to

          3        say, that 100 white students in that class had lower LSAT

          4        scores and grades than Hopwood, but the Hopwood lawyers

          5        said that the black student took her place, not the 100

          6        white students.

          7             Affirmative action should not be about giving

          8        advantages.  We know who have had the advantages since

          9        this country has been in place.  What we are saying is

         10        where the rubber meets the road, let's not go back in

         11        ancient history.  I read all the Florida Constitutions,

         12        which I'm sure you have done.  And I was appalled to see

         13        some of the things in our Constitution.

         14             Let's talk about what's happening today.  Let's talk

         15        about jobs in Texaco, where the executives were sitting

         16        around the table saying, we are going to keep all the

         17        black jelly beans at the bottom of the jar.  Do you think

         18        Texaco is the only corporate, Fortune 1,000 saying that,

         19        or that have this thought?  Or was that the only one

         20        because a secretary taped it and spilled the beans?  Do

         21        you think it is only large companies or just small

         22        companies?

         23             Just two weeks ago in Miami, after all the problems

         24        we had, nine correctional officers, six blacks, three

         25        whites, went to a Denny's and the manager told them they



                                                                          124

          1        wouldn't serve them because they didn't look right

          2        together.  This is just two weeks ago.

          3             So what they did, they went outside and they called,

          4        because he said the oven broke and we can't serve anybody.

          5        So they went outside and they called.  Are You open for

          6        business?  Yes.  So they said, Well, maybe he had a bad

          7        day.  So they went back again; the place is full.  They

          8        said, We just ran out of food.  You-all don't look right

          9        together.  That was two weeks ago.  So in terms of public

         10        accommodations, I'm sure a lot of people would think,

         11        Well, that's no problem anymore.

         12             I purchased a house February 1st, 1996.  And when my

         13        neighbors found out who was really moving in the

         14        neighborhood, they tried to get together and undercut and

         15        buy the house from under me, February 1st, 1996.  There

         16        are only six houses on the block, it is a cul-de-sac.

         17        From that date to this date not one neighbor not only has

         18        not spoken to me, they have not even done like this,

         19        (Indicating), nodded.  Only six houses; I have five other

         20        neighbors.  Not one.  I haven't done anything to them.

         21        Nothing.

         22             This is a problem.  And where there is a problem I

         23        know you are prepared to work for a solution.  I'm sure

         24        you are just thinking -- you say, Well, I just don't think

         25        this is the solution.  And what I say is, if not this,



                                                                          125

          1        what?  If not now, when?

          2             I submit to you, as I close, that we should not

          3        sanction quotas.  Quotas are unfair for everybody.  We

          4        should not sanction unqualified businesses or individuals

          5        getting opportunities.  But I can assure you that

          6        affirmative action has been in effect from the beginning

          7        of time.

          8             Affirmative action has been in effect where the sons

          9        of alumni get admitted to school, where the contributors'

         10        to colleges sons and daughters get into school.  And I can

         11        assure you that with regard to many of those advantages,

         12        those who never, who are a first generation -- the first

         13        black law student went to the University of Florida in

         14        1962.  So we are just first generation, so we are not

         15        benefiting from those special privileges of being the son

         16        of alumnus and being a son of someone who built a

         17        building.

         18             And all we are saying is that today in 1998, that it

         19        should be an expression of the moral consciousness of the

         20        people of the state of Florida that we try to allow

         21        government to remedy the present effects of discrimination

         22        by opening opportunities; opportunities to serve with us

         23        on the Constitution Revision Commission, opportunities to

         24        go into law school.

         25             If there are 100 slots, all we are saying is all 100



                                                                          126

          1        slots shouldn't go to black people, all 100 slots

          2        shouldn't go to white people, it should go to 100

          3        qualified people diverse across the board.  No unqualified

          4        white should get in, no unqualified woman should get in,

          5        no unqualified Hispanic should get in, no unqualified

          6        anybody should get in.

          7             And I think that that is what we are trying to do.  I

          8        think that this proposal does it.  And I think, as you

          9        know, Commissioner Connor, when Virgil Hawkins tried to

         10        enter into the University of Florida law school, and the

         11        U.S. Supreme Court ordered that Florida let him in, the

         12        court said, I'm sorry, U.S. Supreme Court, we can't do

         13        that because there will be a hue and cry.  And there will

         14        be so much disruption on this campus that nobody will be

         15        educated.  And so they refused to do it.

         16             And after refusing to do it, the case was taken from

         17        the Florida courts and then put into the federal courts.

         18        And so you might be right, you have a better sense of the

         19        politics than I did.  There may be a hue and cry.  And if

         20        that's the basis for defeating it, I'm prepared to live

         21        with that.

         22             CHAIRMAN DOUGLASS:  You have a question?

         23             COMMISSIONER CONNOR:  I do.

         24             CHAIRMAN DOUGLASS:  To Commissioner Smith, who has

         25        the floor.



                                                                          127

          1             COMMISSIONER CONNOR:  Yes.

          2             CHAIRMAN DOUGLASS:  Do you yield?

          3             COMMISSIONER SMITH:  Yes, Mr. Chairman, I just want

          4        to sit for a moment, but I'll stand.

          5             CHAIRMAN DOUGLASS:  That's fine.

          6             COMMISSIONER CONNOR:  Commissioner Smith, my frank

          7        hope was that we could have a discussion about affirmative

          8        action, independent of it being burdened by other issues.

          9             Now the question -- I have two questions of you.

         10        Number one, what groups, if any, besides ethnic minorities

         11        and women do you see embraced by this proposal, number

         12        one?  And number two, would you be comfortable with the

         13        proposal, minus the first sentence?

         14             PIn other words, would you -- you have asked about

         15        what alternatives there are and how you can solve

         16        problems, et cetera.  And I look forward to having a -- my

         17        hope is to have a debate that is narrowly tailored to deal

         18        with the affirmative action issue that doesn't create

         19        First Amendment issues, freedom of association issues,

         20        religious expression issues, et cetera.

         21             And so my question is what is your understanding of

         22        the intent here?  What is your intent?  And can we narrow

         23        the scope of this proposal in a way that you are

         24        comfortable with so that we don't burden it with some of

         25        these other issues?



                                                                          128

          1             COMMISSIONER SMITH:  Thank you for the question,

          2        Mr. Connor.  First of all, I am not the proponent of this

          3        proposal; however, in the spirit of the way we have worked

          4        together before, I would be personally agreeable to try to

          5        tailor.  I want you to know that my comments outside the

          6        area of affirmative action was just trying to respond to

          7        questions that were raised and points that are made

          8        concerning anecdotal, and I don't say that in a negative

          9        way, I'm just saying examples.

         10             So it is my understanding and was my intention of

         11        backing this proposal that it protects minorities and

         12        women.  That was --

         13             COMMISSIONER CONNOR:  I think there is great benefit

         14        to having a discussion about that.  But frankly, the

         15        language that we are dealing with, in my estimation, is so

         16        broad I'm greatly concerned about it.  And so if I may

         17        inquire of the sponsor of the underlying proposal, if

         18        that's in order, what his intent is in that regard

         19        because, frankly, I'm wondering if we can have a

         20        discussion that narrows the issue to address these very

         21        worthy issues of debate.

         22             CHAIRMAN DOUGLASS:  Let me see if we all understand

         23        your question, maybe I didn't understand it.  You are

         24        asking him does this go beyond protecting --

         25             COMMISSIONER CONNOR:  Ethnic minorities and women.



                                                                          129

          1             CHAIRMAN DOUGLASS:  They are now, as I understand it,

          2        I think you agree that these are protected classes

          3        currently.

          4             COMMISSIONER CONNOR:  Yes, sir.  Race and religion

          5        are identified as protected classes.

          6             CHAIRMAN DOUGLASS:  Are you worried about any

          7        specific group?

          8             COMMISSIONER CONNOR:  My inquiry and my concern has

          9        to go with the issues I raised at the beginning.  How are

         10        religious groups affected with respect to employment

         11        because employment is one of the things you talk about,

         12        people who may engage in behaviors that they find

         13        offensive and that would otherwise disqualify them for

         14        employment in their religious sect.

         15             Housing too, for the person who rents out a room in

         16        their house and has scruples about whether or not somebody

         17        is going to be engaging in heterosexual -- we have heard

         18        this in Miami.  I know H.T. Smith has heard this over and

         19        over and over with respect to that.

         20             And so is the intent here to simply deal with past

         21        discriminatory effects on racial minorities and women, or

         22        is it broader than that?  And if it is, I would just like

         23        to know it.  And if it isn't, my question is, is there a

         24        way we can narrow the scope of this proposal to focus on

         25        the issues of concern?



                                                                          130

          1             CHAIRMAN DOUGLASS:  Commissioner Sundberg.

          2             COMMISSIONER SUNDBERG:  Commissioner Connor, there is

          3        no intent on the part of the proponent to expand what are

          4        now recognized by law as protected classes.  And I think

          5        you have described them.  So that's not the intent.

          6             I would suggest to you that it is important, for many

          7        of the reasons that we have heard expressed by others,

          8        particularly Commissioner Langley, that that language be

          9        in there because it is a preface to the second sentence.

         10        And what it says is, what we are striving for is equal

         11        opportunity, equal opportunity.  And that's why it's in

         12        there.

         13             And frankly, I really -- I think I now perceive what

         14        your concern is.  I don't think this language embodies

         15        that, and moreover, moreover, in terms of your assertion

         16        that there are wide ranging First Amendment

         17        implications --

         18             COMMISSIONER CONNOR:  Freedom of association and

         19        freedom of religion are the specific areas.

         20             COMMISSIONER SUNDBERG:  But we know that if there are

         21        First Amendment implications, that First Amendment of the

         22        United States Constitution will simply trump this if you

         23        have such concerns.

         24             COMMISSIONER CONNOR:  I do have concerns, continuing

         25        the question, and I will --



                                                                          131

          1             CHAIRMAN DOUGLASS:  Go ahead.

          2             COMMISSIONER CONNOR:  My concern has to do,

          3        Justice -- Commissioner Sundberg, with the effect that the

          4        Florida Supreme Court has accorded amendments to the

          5        Florida Constitution, recognizing that even where language

          6        tracked existing federal law, the presumptions were, as

          7        indulged in by the court, that the State meant something

          8        broader, greater, stronger, et cetera.

          9             So I don't know whether or not there's language that

         10        is suitable to you.  And this may be something we want to

         11        consider.  This is the first time I've seen the proposal.

         12        It may benefit from a TP to discuss this.  But I don't

         13        know if, for example, and I would be interested in knowing

         14        your sentiments and Mr. Langley's sentiments that if

         15        these -- if the language concerning citizens were further

         16        modified by these protected classes, regardless of race,

         17        religion or physical handicap, so that we begin to develop

         18        some comfort about how tailored the proposals are.

         19             Now, you are the sponsor, you are the sponsor of the

         20        amendment, I'm just expressing what my concerns are.  And,

         21        frankly, you know, I've followed -- you know, I've read a

         22        lot of different publications by a lot of different

         23        organizations, their concerns about issues that relate to

         24        employment, housing, et cetera, which go beyond race,

         25        religion and physical handicap.  And I'm well aware of the



                                                                          132

          1        intensity of these issues out there in the marketplace.

          2             Again, hue and cry, listen, I was here in 1988 and

          3        '89, when we had the special session on abortion.  I am

          4        accustomed to hue and cry.  You should see the hate mail

          5        that I have and have saved.  Okay, I'm going to do what I

          6        think is right, you are going to do what you think is

          7        right, that's appropriate.  But my concern is that are we

          8        using a meat ax approach when a scalpel would better suit

          9        the purpose and narrowly define the issues more carefully.

         10             Now if you are not amenable to that, so be it.  We'll

         11        just take our vote and live with our decision.

         12             CHAIRMAN DOUGLASS:  Commissioner Sundberg, in

         13        response to the question.

         14             COMMISSIONER SUNDBERG:  My response to the question

         15        is I am the easiest guy in the world to get along with.

         16        If you've got some language that, you know, you believe

         17        will address -- well, some people think I'm easy to get

         18        along with.

         19             CHAIRMAN DOUGLASS:  We are not going to take a vote

         20        on that, go ahead.

         21             (Laughter.)

         22             COMMISSIONER SUNDBERG:  Thank you, Mr. Chairman.

         23             You know, I'm open to that kind of language.  I tell

         24        you, in as good a faith as I'm capable of doing, without

         25        trying to circumscribe or, you know, the proper function



                                                                          133

          1        of any court in its interpretation of the Constitution,

          2        and I know you want to make a record, and I'm perfectly

          3        willing to have you do that.  All I can tell you is, in

          4        the best of good faith, that there's no intent on the part

          5        of this proponent of this proposal to expand the protected

          6        classes beyond those traditional protected classes.

          7             COMMISSIONER CONNOR:  If I may follow further.  As

          8        the Commissioner is aware, particularly by virtue of his

          9        previous distinguished judicial experience, that where the

         10        language is plain on its face, the court doesn't look

         11        beyond that to intent.

         12             So what I'm saying is this language is very, very

         13        broad, Commissioner Sundberg, it is very broad.  And I

         14        would suggest to you, however laudable your goal may be,

         15        that you are going to wind up, based on this language,

         16        booking opposition that you do not want and that is not

         17        necessary for you to book because of this language.

         18             (Off-the-record comment.)

         19             COMMISSIONER CONNOR:  I am trying, you know,

         20        candidly, I am.

         21             CHAIRMAN DOUGLASS:  I think you have left the

         22        question there for a moment.

         23             COMMISSIONER CONNOR:  So, my question is, would you

         24        agree, based on your prior judicial experience, that where

         25        the language is plain and unambiguous on its face, that



                                                                          134

          1        the court would not look to the subjective intent of this

          2        body on that issue?

          3             COMMISSIONER SUNDBERG:  To be frank with you, and in

          4        all candor, I've never seen any language that was

          5        absolutely plain and unambiguous on its face.  That

          6        often -- and I'm not being facetious, Commissioner Connor.

          7        We know oftentimes that that's a phase that's often result

          8        oriented.  But, you know, I didn't think I'd get much

          9        opposition from you on that.

         10             But frankly, that doesn't mean I'm unwilling to

         11        attempt to narrow this.  I don't see that this language,

         12        however, is as broad, certainly no broader than all

         13        natural persons.

         14             CHAIRMAN DOUGLASS:  Commissioner, before we go

         15        further, I want to see if we can't cut to the chase a

         16        little bit with a question here, Commissioner Sundberg, if

         17        you would stay up.

         18             COMMISSIONER SUNDBERG:  Yes, sir.

         19             CHAIRMAN DOUGLASS:  I think what we are dancing

         20        around here a little bit is the hot button issue of

         21        whether or not this will afford gay rights or the

         22        protection of homosexuals from these various activities.

         23        As I understand what you said, this is the question, it

         24        would not because they are not now protected classes; is

         25        that correct?



                                                                          135

          1             COMMISSIONER SUNDBERG:  That is absolutely correct.

          2        Now, it doesn't mean that they may not at some time in the

          3        future.

          4             CHAIRMAN DOUGLASS:  Commissioner Mills.

          5             COMMISSIONER MILLS:  Mr. Chairman, Mr. Smith and I

          6        have been talking a little bit about the language here.

          7        And I ask Commissioner Sundberg to consider this.  I mean,

          8        it's fascinating to be creating constitutional language

          9        within 30 seconds.

         10             CHAIRMAN DOUGLASS:  Probably just as good as 30 days.

         11        Go ahead.

         12             COMMISSIONER MILLS:  It may well be.  It would seem

         13        to me that a way to limit the impact to protected classes,

         14        which are enumerated in the last sentence, would be to

         15        strike the first new sentence, simply put the conjunctive

         16        after handicap and say, and the state, its agencies, et

         17        cetera.  In other words, if you identify these protected

         18        classes and then you identify what the state is authorized

         19        to do related to it.

         20             COMMISSIONER SUNDBERG:  That is absolutely acceptable

         21        to me.  Is that acceptable to you, Mr. Smith?

         22             COMMISSIONER SMITH:  Yes, sir.

         23             CHAIRMAN DOUGLASS:  Somebody prepare the amendment.

         24        We will take -- we are not going to take a lunch recess

         25        until 12:30, Commissioner -- beg your pardon?



                                                                          136

          1             COMMISSIONER BARKDULL:  Point of order.

          2             CHAIRMAN DOUGLASS:  Yes.

          3             COMMISSIONER BARKDULL:  Aren't we on the amendment?

          4             CHAIRMAN DOUGLASS:  We are, but they have got another

          5        amendment.  We might as well take a --

          6             COMMISSIONER BARKDULL:  Well, is this an amendment to

          7        the amendment or an amendment to the proposal?

          8             CHAIRMAN DOUGLASS:  What is the amendment?  Read it

          9        again.  Is it your amendment language?

         10             COMMISSIONER LANGLEY:  Mr. Chairman, to properly

         11        proceed, if this is what the sponsor wants to do, I will

         12        temporarily withdraw my amendment that's pending, he can

         13        offer the striking amendment and I will re-offer it.

         14             CHAIRMAN DOUGLASS:  Without objection, it is

         15        temporarily withdrawn.  And we are going to take a short,

         16        five-minute recess, don't leave the chamber.  And we are

         17        going to gavel right back as soon as they come up with a

         18        statement.  We are in recess, five minutes, stay in the

         19        chamber.

         20             (Brief recess.)

         21             SECRETARY BLANTON:  Commissioners, indicate your

         22        presence, please.  All commissioners indicate your

         23        presence.

         24             CHAIRMAN DOUGLASS:  All right.  Everybody indicate

         25        your presence.



                                                                          137

          1             (Quorum taken and recorded electronically.)

          2             SECRETARY BLANTON:  Quorum present, Mr. Chairman.

          3             CHAIRMAN DOUGLASS:  All right.  Commissioner Mills.

          4        Would everybody please take their seats?  We are going to

          5        break for lunch at 12:30, or as soon as we finish this

          6        item.  Commissioner Mills has the floor.  Ask the people

          7        behind you to -- Commissioner Sundberg --

          8             COMMISSIONER SUNDBERG:  I'm sorry, Mr. Chairman.

          9             CHAIRMAN DOUGLASS:  -- we are trying to get underway.

         10             COMMISSIONER SUNDBERG:  I understand.  And,

         11        Mr. Chairman --

         12             CHAIRMAN DOUGLASS:  Commissioner Mills has the floor.

         13             COMMISSIONER MILLS:  Mr. Chairman, I think we have

         14        made some progress.  Let me, if I may, perhaps just read

         15        this sentence.

         16             CHAIRMAN DOUGLASS:  Certainly.  It's being offered as

         17        an amendment?

         18             COMMISSIONER MILLS:  It will be offered as an

         19        amendment, if it is -- I think we are getting close to a

         20        consensus on this, though I can't really represent that

         21        yet.  I mean, this is 30 seconds' worth of constitutional

         22        drafting, although -- on Page 1, Line 25, after the

         23        period, insert, this would basically then take out the

         24        first sentence.

         25             CHAIRMAN DOUGLASS:  Delete the first sentence?



                                                                          138

          1             COMMISSIONER MILLS:  Starting at, "all citizens."

          2        So, before "all citizens" this comes in and "all citizens"

          3        will not be in.

          4             "The state, its agencies, political subdivisions,

          5        municipalities, counties, public colleges and

          6        universities, community colleges, school districts,

          7        special districts, authorities and other government

          8        instrumentalities may take actions necessary to remedy the

          9        present effects of past discrimination against any

         10        individual on the basis of race, religion, physical

         11        handicap or whether an individual is a male or female in

         12        the areas of housing, employment, public accommodations,

         13        public education, the purchase of goods and services and

         14        the expenditure of public funds."

         15             CHAIRMAN DOUGLASS:  Then you are deleting -- it

         16        doesn't say on mine.

         17             COMMISSIONER SUNDBERG:  Mr. Chairman, it deletes the

         18        sentence commencing on Line 25 with "all citizens" and it

         19        will delete, "all citizens shall enjoy equal opportunity

         20        to employment, housing, public accommodations, public

         21        education and other benefits of citizenship."  It deletes

         22        that.

         23             CHAIRMAN DOUGLASS:  That will be deleted, that

         24        sentence.

         25             COMMISSIONER SUNDBERG:  Right, right.



                                                                          139

          1             CHAIRMAN DOUGLASS:  This amendment that's been handed

          2        me that's on the table does not delete that, although it

          3        intends to.

          4             COMMISSIONER SUNDBERG:  Right.

          5             CHAIRMAN DOUGLASS:  It just says, on Page 1, Line 25,

          6        after the period, insert.

          7             COMMISSIONER SUNDBERG:  Right.

          8             CHAIRMAN DOUGLASS:  And then it should say -- first

          9        it should say, delete, on Line 25, beginning at the

         10        period, delete, and then outline what you deleted or the

         11        lines you have deleted and substitute the following,

         12        insert the following.  Has everybody got a copy of it, of

         13        the amendment?  Do you see what I'm saying, it doesn't

         14        delete what you are deleting.  Can you do that?

         15             I think all you have to say is delete, beginning at

         16        the period, delete that, the next sentence, appearing on

         17        Lines 26, 27, through the period on 28, and then insert

         18        this.  Is that your amendment?

         19             (Off-the-record comment.)

         20             COMMISSIONER MILLS:  That just means that everything

         21        after that is deleted and we will --

         22             CHAIRMAN DOUGLASS:  And you move that amendment,

         23        which is --

         24             COMMISSIONER MILLS:  Now, Mr. Chairman, there were

         25        two words changed in the original printing.



                                                                          140

          1             CHAIRMAN DOUGLASS:  Yes.  That is after the word

          2        "handicap," right?  Where the period is?

          3             COMMISSIONER MILLS:  Yes.  There is -- the amendment

          4        that I just placed up there --

          5             CHAIRMAN DOUGLASS:  And we'll have him read it, or

          6        her read it.  Commissioner Langley.

          7             COMMISSIONER LANGLEY:  As a point of order,

          8        Mr. Chairman, there is no motion before the Chair right

          9        now.  And I would move that we temporarily pass this and

         10        work out some of this language.  It is not that easy, and

         11        what they propose doesn't solve a lot of the problems that

         12        were solved by eliminating the first sentence.  And, you

         13        know, we don't want something like -- I wouldn't think we

         14        want something like this going out as a product, this

         15        hastily done.  And I would move that we temporarily pass

         16        it to another day.

         17             CHAIRMAN DOUGLASS:  Well, I don't think we need to

         18        move it to another day.

         19             COMMISSIONER SUNDBERG:  Mr. Chairman, a point -- as

         20        the proponent, may I move to temporarily pass this issue

         21        to give us an opportunity, all in good faith, to do a

         22        little more craftsmanship on this?

         23             CHAIRMAN DOUGLASS:  All right.

         24             COMMISSIONER SUNDBERG:  I would like to bring it back

         25        tomorrow.  I'd like to TP it to a time certain, if I may.



                                                                          141

          1             CHAIRMAN DOUGLASS:  If you would like to do this, we

          2        can extend the lunch hour until -- you-all don't want to

          3        eat, I guess.

          4             COMMISSIONER SUNDBERG:  Well, I think we may need as

          5        much as an overnight.

          6             CHAIRMAN DOUGLASS:  All right.  Well there is a

          7        motion then to TP it, with a time certain being first on

          8        the order tomorrow morning.  Commissioner Barkdull?

          9             COMMISSIONER BARKDULL:  Why not the first item to

         10        come up at the next regular daily business?

         11             COMMISSIONER SUNDBERG:  Exactly, exactly.

         12             CHAIRMAN DOUGLASS:  The first item that comes up at

         13        the next daily session.  Without objection, we will do

         14        that.  It was done.  Commissioner Langley.

         15             COMMISSIONER LANGLEY:  Mr. Chairman, it was my

         16        motion, but you just kind of took it away from me.

         17             CHAIRMAN DOUGLASS:  Well, we passed it.

         18             COMMISSIONER LANGLEY:  You didn't pass what I wanted,

         19        but you passed a motion out of order by Mr. Sundberg to do

         20        something else.  But anyway, I don't know how many people

         21        are going to be here tomorrow, but this is a very

         22        important issue.

         23             CHAIRMAN DOUGLASS:  That's why Commissioner Barkdull

         24        changed it to the next session.  Because if there's not a

         25        quorum, obviously we wouldn't have a session tomorrow.



                                                                          142

          1             COMMISSIONER LANGLEY:  But what if there is in fact

          2        19?  I mean, that's not very representative.

          3             CHAIRMAN DOUGLASS:  I'll bet you are here.

          4             COMMISSIONER LANGLEY:  I'll bet I'm not.

          5             CHAIRMAN DOUGLASS:  Well, you were not here Monday

          6        and Tuesday.  I thought maybe you would be here Friday.

          7             COMMISSIONER LANGLEY:  We don't want to start talking

          8        about people's performance, Mr. Chairman.

          9             CHAIRMAN DOUGLASS:  That is not performance, sir.

         10        You are performing extremely well.  And also, Commissioner

         11        Smith said he was not the shining light, the Governor

         12        didn't appoint him, the Governor appointed him because he

         13        was the brightest shining light.

         14             Commissioner Sundberg.

         15             COMMISSIONER SUNDBERG:  I don't wish -- I wish

         16        Commissioner Langley would share with me his problem.  If

         17        I'm out of order, I don't wish to proceed out of order,

         18        Commissioner.

         19             COMMISSIONER LANGLEY:  Oh, you mean the procedure

         20        problem?  We don't pay any attention to those things in

         21        here anyway.  I'm not upset about that.

         22             COMMISSIONER SUNDBERG:  Nobody pays any attention to

         23        me so it makes it all even.

         24             COMMISSIONER LANGLEY:  The language, for instance,

         25        that's in there now, and I know it's well meant, but the



                                                                          143

          1        language doesn't cover, for instance, the housing problem.

          2        Male or female, that means that I cannot advertise for a

          3        male roommate for my son or my daughter can't advertise

          4        for a female roommate because that's discrimination.

          5        She's got to have a roommate.

          6             COMMISSIONER SUNDBERG:  Well, I'm prepared to debate

          7        that with you.  Because, see, you are suggesting that this

          8        language creates a right and all it does is permit public

          9        agencies to take some actions.  But that's better left to

         10        the debate.  And I would hope that we'll have your input,

         11        you know, as we go forward and try to work on this

         12        language.  And that's why I'm perfectly willing to

         13        temporarily pass it because I don't think -- you know,

         14        it's not the kind of exquisite language that we want.

         15             CHAIRMAN DOUGLASS:  As it stands now, it's been

         16        temporarily passed to the first item on the special order

         17        of business at the next meeting of the commission.  Is

         18        that correct, Commissioner Barkdull?

         19             COMMISSIONER BARKDULL:  That's what I understood the

         20        motion was that passed.

         21             CHAIRMAN DOUGLASS:  It passed without objection.

         22        Therefore, we'll proceed then to -- let's go to lunch and

         23        come back at 1:10 -- 1:15, if you would move to adjourn or

         24        recess.

         25             COMMISSIONER BARKDULL:  1:15?



                                                                          144

          1             CHAIRMAN DOUGLASS:  1:15.

          2             Commissioner -- before you go, hold it just a minute.

          3        Commissioner Mills has a question.

          4             COMMISSIONER MILLS:  I'm sorry, Mr. Chairman, but the

          5        Article V committee, I have some problems with attendance.

          6        So just for those that are on it, I would like to cancel

          7        the meeting today and we'll do the Article V meeting as

          8        you have scheduled it next time, on Monday, when the rules

          9        chairman --

         10             CHAIRMAN DOUGLASS:  Are you going to be able to

         11        conclude your work at the next meeting and have it for

         12        action?

         13             COMMISSIONER MILLS:  What in fact has occurred is it

         14        appears Justice Sundberg -- Commissioner Sundberg has had

         15        a number of meetings, we have been working with staff.

         16        And I think we may be in a position when we come back to

         17        provide something that's almost a consensus Article V

         18        proposal.

         19             CHAIRMAN DOUGLASS:  The reason I ask that is because

         20        we need to get to that as quickly as we can.

         21             COMMISSIONER SUNDBERG:  Mr. Chairman, I think there

         22        is literally just one issue open, one substantive issue

         23        that they are trying to come -- I don't care how they come

         24        out on it, and I've said either way they come out, then we

         25        go.  Is that a fair statement, Mr. Chairman?



                                                                          145

          1             COMMISSIONER MILLS:  Yes.

          2             HEARING OFFICER:  Fair enough.  And then you are

          3        going to reschedule that meeting and that will be Monday,

          4        the 26th.

          5             COMMISSIONER MILLS:  Yes.

          6             CHAIRMAN DOUGLASS:  Okay.  We stand in recess.

          7             (Lunch recess taken from 12:15 p.m. to 1:15 p.m.)

          8             (Quorum taken and recorded electronically.)

          9             SECRETARY BLANTON:  All commissioners indicate your

         10        presence.  All commissioners indicate your presence.

         11             CHAIRMAN DOUGLASS:  All right.  We're going to get

         12        started here in a few minutes.  If everybody would get in

         13        their seats.  Commissioner Barkdull -- do we have a

         14        quorum?

         15             SECRETARY BLANTON:  Quorum present, Mr. Chairman.

         16             CHAIRMAN DOUGLASS:  I have been informed that we have

         17        24 members that have indicated they will be here tomorrow,

         18        which is a sufficient number to meet tomorrow if we need

         19        to.  I was told that was the case.  So you might want to

         20        consider that later in the day.

         21             COMMISSIONER BARKDULL:  Mr. Chairman and members of

         22        the commission, the executive director and I are talking

         23        about that right now.  We're going to watch how the

         24        calendar goes this afternoon and we'll probably have an

         25        announcement to make later on.



                                                                          146

          1             CHAIRMAN DOUGLASS:  All right.  I'm waiting on

          2        Commissioner Jennings who is on the way.  If you have

          3        something you want to bring up, other than a proposal.

          4             COMMISSIONER BARKDULL:  Actually, Mr. Chair, the

          5        director just handed me a slip that if Commissioner

          6        Jennings and Commissioner Hawkes are here, we will have

          7        had an indication that there will be 27 here tomorrow.

          8             CHAIRMAN DOUGLASS:  They are both here, but they are

          9        not in here.

         10             COMMISSIONER BARKDULL:  I suggest we revert to

         11        special order and proceed and we will make further

         12        announcements as the afternoon goes on.

         13             CHAIRMAN DOUGLASS:  That's fine.  One of the reasons

         14        I was waiting on Commissioner Jennings, the next order is

         15        Proposal 16, of which I'm a sponsor along with

         16        Commissioner Connor and I thought I would leave the Chair

         17        and she was going to be in the Chair while I was

         18        presenting Proposal 16.

         19             (Off-the-record comment.)

         20             CHAIRMAN DOUGLASS:  I don't think I can risk that,

         21        you haven't been here long enough.  You need more

         22        training.  I understand you have a new name for -- someone

         23        does for telling the secretary when they are going to the

         24        back.  She'll discuss that with you later, she said.

         25             Commissioner Jennings, I'd like for you to take --



                                                                          147

          1        turn her loose, Commissioner Mills, and let her come up

          2        here.

          3             (Laughter.)

          4             (Commissioner Jennings assumes the Chair.)

          5             COMMISSIONER JENNINGS:  The secretary is overjoyed.

          6        It has nothing to do with the chairman, Mr. Chairman.

          7             (Laughter.)

          8             COMMISSIONER JENNINGS:  It's just that she's so used

          9        to turning around and seeing my face, that's it.

         10             Proposal No. 16, read the proposal.

         11             READING CLERK:  Committee substitute for Proposal 16

         12        by the committee on Ethics and Elections and Commissioner

         13        Douglass; a proposal to create Article VII, Section 7 -- a

         14        proposal to create Article VI, Section 7, Florida

         15        Constitution, and Article XII, Section 23, Florida

         16        Constitution; providing for public financing of campaigns

         17        for elected statewide office and for spending limits.

         18             COMMISSIONER JENNINGS:  Commissioner Douglass, you

         19        are recognized.

         20             CHAIRMAN DOUGLASS:  Commissioner Connor and I

         21        sponsored this before the committee yesterday and the

         22        committee approved it by a vote I believe of five or six

         23        to one, I can't remember.  It was five to one.

         24             This is the result of having worked on this for some

         25        time, along with some of the interested people.  And what



                                                                          148

          1        it does, if you will read the committee substitute that's

          2        before you, it provides -- it's a policy of the State to

          3        provide for statewide elections in which all qualified

          4        candidates may effectively compete without the

          5        disproportionate influence of special interests.

          6             A method of public financing for campaigns for

          7        statewide office shall be established by law.  Spending

          8        limits shall be established for such campaigns for

          9        candidates who use public funds in their campaigns.  The

         10        Legislature shall provide sufficient funding for this

         11        provision.

         12             And the second half, part of this that's before you

         13        is a schedule which in effect says campaign limits and

         14        funding of campaigns for elective statewide offices may be

         15        implemented by existing general law relating to campaign

         16        spending limits and funding of campaigns for elective

         17        statewide office, or by law that is equally or more

         18        protective of effective competition and therefore provides

         19        greater access to the ballot for all.

         20             I think if there is one thing that bothers all of us,

         21        whether we're in the general public or serving in the

         22        Legislature or in any other type of elective office,

         23        whether it be on any level is the terrible, terrible job

         24        of raising funds and getting funds to run an election.

         25        And it's become such a thing in our process that it



                                                                          149

          1        actually forces candidates, instead of going about perhaps

          2        discussing the issues, they have to spend their time

          3        raising money.

          4             And it's become viewed by the public generally, and

          5        probably properly so, that one of the major things that

          6        people who are in office have to do and want to do is to

          7        raise funds so they can be reelected.  The major things

          8        that special interest groups want to do is put enough

          9        funds into any individual campaign so that they have

         10        favorable access to the elected official.  And in some

         11        instances the public believes that they actually control

         12        their vote on certain issues.

         13             And I think from day to day we all see examples of

         14        the effect of money on campaigns and as it works on our

         15        legislative bodies.  It's not just this legislative body,

         16        but any, including county commission, city commissions,

         17        and they are all subject to the same problem.

         18             And it's not that people who are in these offices

         19        want to be beholden to special interests, it's not that

         20        they are, but it's that their job becomes, in effect, from

         21        the public viewpoint, somewhat demeaned by the general

         22        public feeling that this is some forum of the people with

         23        large money, whether they be labor unions or whether they

         24        be large corporate interests or whatever, that they

         25        actually control the actions on critical issues of various



                                                                          150

          1        people that are elected to public office.

          2             Now I don't want to be misunderstood.  I don't

          3        believe that's true with most of the people that I know

          4        that serve in all of these public offices.  Most people

          5        are generally motivated to do what they feel is best for

          6        the state or for their constituency, as the case may be.

          7        There are those we all know that aren't and we see those

          8        too.  But that alone is not sufficient reason to adopt

          9        this proposal.

         10             I think the best example of why we need to do this

         11        would be illustrated by the election of the comptroller in

         12        the last election.  By virtue of having public financing

         13        available and agreeing to accept limits on his

         14        expenditures, the General became comptroller by defeating

         15        an incumbent who had an unlimited supply, financial

         16        supply, to run his campaign.  Now, without public funding

         17        we would never probably have heard further of General

         18        Milligan.  We would probably put him in the category of

         19        some lieutenant governors we can't remember who they were.

         20             But in any event, we now know that by virtue of this

         21        law being in effect we have one of the best public

         22        servants that we've had in Florida.  And he is totally

         23        independent in his thinking and in his actions.  And as

         24        comptroller that is extremely important because he not

         25        only controls the banking interests but he also is the



                                                                          151

          1        watchdog of the treasury and how the money is spent.

          2             I use him as an example instead of Governor Chiles

          3        because there is a little bit of difference there.

          4        Governor Chiles had 32 years of public service, including

          5        service in the United States Senate for 18 years and the

          6        state Senate and state Legislature.  And he was well

          7        known.  And the financial needs of a candidate such as him

          8        were not nearly so much as someone like General Milligan

          9        who wanted to come forward and serve after a distinguished

         10        career in the U.S. Marine Corps.

         11             The Governor limited his campaign contributions to

         12        $100 per person in each cycle, and he had done that

         13        before.  But in this particular election, because he

         14        elected to take public financing when the opponent did

         15        not, under the existing law, and raised over a certain

         16        amount, then the playing field was leveled by the public

         17        funds kicking in and it discouraged the raising of

         18        $50 million like occurred in California, but it did result

         19        in, when it did go over the cap amount, that he kept up

         20        with his $100 matchings as it went along.

         21             And therefore he was able to compete and to

         22        ultimately win the election.  And I don't think without

         23        public financing that Governor Chiles would have been

         24        elected.  Now I recognize there are people that would like

         25        that to have been the result.  A large number of people



                                                                          152

          1        voted for the other candidate, but I submit to you that it

          2        was the will of the people and he has served honorably as

          3        Governor.  And I'm sure that his opponent would have, too.

          4        I don't mean to imply otherwise.

          5             But in any event, what it shows is a clean

          6        election -- and by clean and I mean financially clean

          7        election -- can occur with public financing available.  It

          8        could occur without it, but the likelihood in many

          9        instances of it not so occurring would be very difficult.

         10             So Commissioner Connor, who also has some personal

         11        experience which I'm sure he will tell you about, will --

         12        supported this.  And we very urgently feel that it should

         13        be put into the Constitution to ensure clean elections and

         14        elections that are as free as possible from being bought

         15        by large amounts of money from outside the state or

         16        anywhere else.  And, therefore, we commend this committee

         17        substitute as a reasonable way to do that, leaving to the

         18        Legislature the ability to offer it but not below its

         19        current standard.

         20             And we believe that the public will join, like with

         21        the League of Women Voters, Common Cause, several other

         22        public interest groups in passing this, if we put it on

         23        the ballot.  And, therefore, without me saying anything

         24        further, I would yield to any questions and then I would

         25        certainly yield to Commissioner Connor, who is a




                                                                          153

          1        co-introducer, when I complete.

          2             COMMISSIONER JENNINGS:  Questions of the sponsor?

          3        Commissioner Kogan.

          4             COMMISSIONER KOGAN:  Question.  Commissioner

          5        Douglass, does this amendment apply to Supreme Court

          6        justices running in a statewide merit retention election

          7        where there is organized, announced opposition?

          8             CHAIRMAN DOUGLASS:  No, it does not.

          9             COMMISSIONER JENNINGS:  Further questions?

         10        Commissioner Corr.

         11             COMMISSIONER CORR:  Thank you.  Commissioner

         12        Douglass, does this -- I'm confused.  Does this mean if

         13        I'm a candidate for statewide office and I accept public

         14        financial support, that I then also agree not to receive

         15        contributions from any other source?

         16             CHAIRMAN DOUGLASS:  No, what it means is you accept a

         17        cap on the amount of money that you can receive and spend.

         18             COMMISSIONER CORR:  And then the cap is set by the

         19        Legislature?

         20             CHAIRMAN DOUGLASS:  Yes.

         21             COMMISSIONER CORR:  Will that be a cap on individual

         22        contributions or a cap on total spending?

         23             CHAIRMAN DOUGLASS:  No, the cap on individual

         24        contributions comes by law at the present time.  And some

         25        caps are not constitutional.



                                                                          154

          1             One of the ways that I wanted to apply some money to

          2        election purposes was, as you suggested in one of your

          3        proposals, which was to say if out-of-state contributions

          4        are corporate or business entities or nonbusiness entity

          5        contributions were made, that a percentage of that would

          6        have to go into a fund, which would then be in a trust

          7        fund.  And, therefore, you could finance public financing

          8        even in elections other than statewide that way.

          9             We concluded, unfortunately, that there is a U.S.

         10        Supreme Court decision that says that would be

         11        unconstitutional and therefore we tried to draft

         12        something, and I think we have, that would meet

         13        constitutional muster.  I believe there is another

         14        proposal, however, by one of the commissioners that has

         15        not been heard yet which addresses the issue of campaign

         16        contribution limits.  That is not involved in this

         17        proposal.

         18             COMMISSIONER CORR:  May I continue?  And I think,

         19        like you said, Commissioner Douglass, everybody on this

         20        floor has the motivation to try to, quote, clean up the

         21        election process.  And one of the things you said at the

         22        introduction of this was that this would provide for clean

         23        elections.

         24             CHAIRMAN DOUGLASS:  Cleaner.

         25             COMMISSIONER CORR:  Cleaner.  So I can still have a



                                                                          155

          1        portion of -- if the other kind of money is dirty, I can

          2        still have dirty money along with my clean money.

          3             CHAIRMAN DOUGLASS:  I'm kind of like this, as a

          4        lawyer I've had clients that paid me that I thought the

          5        money was clean and I sure hope it was, but I didn't

          6        inquire too closely in some instances.  And I'm sure that

          7        in Disney, the people that go through there, they don't

          8        imply whether or not the money is clean, or not.  And

          9        money is money.

         10             So I don't know that there is any way that you can

         11        keep the world's biggest crook from contributing to a

         12        campaign.  What you can do is make it so the world's

         13        biggest cook can't buy the election, which is what this

         14        attempts to do.  So from that standpoint, cleanliness is

         15        about as good as we can get it.  If you find a way to

         16        define clean money, as such, I would be the first one to

         17        go along with that.

         18             COMMISSIONER CORR:  That helps.  The last question is

         19        in the staff analysis it talks about the 1994 elections.

         20        And I think of the some 11 or so odd million dollars that

         21        was spent in the public finance system, almost 9 million

         22        was taken from general revenues.  I guess because there

         23        was a trust fund set up they couldn't handle the demands

         24        required at the time.

         25             CHAIRMAN DOUGLASS:  Correct.



                                                                          156

          1             COMMISSIONER CORR:  One of the concerns I had, and

          2        I'll just maybe speak to it a little bit, is just the

          3        public policy kind of where are we headed?  If we're

          4        funding elections with tax money that could be going to

          5        criminal justice, schools, whatever else those great

          6        causes may be, to spend some $9 million for elections, and

          7        obviously that number would just go up under this

          8        proposal, how do you respond to that?  Is that worth the

          9        price of a cleaner election?

         10             CHAIRMAN DOUGLASS:  I would answer that two ways.

         11        The amount of public funds that are expended are related

         12        directly to the amount that the nonconforming candidate

         13        raises.  And if he raises millions and millions and

         14        millions, it would be more money coming out of the public

         15        financing for those that are opposing him in the campaign.

         16        So it's going to be different every time, to say that it

         17        would be that amount.

         18             $9 million, however, as it relates to this particular

         19        matter, part of that money that was spent was raised from

         20        assessments on qualifying fees.  My understanding was

         21        about one third of the money that was spent came from that

         22        source.  I don't know if that's exactly correct, that's

         23        what I was told.  And the rest came from what would be

         24        general revenue.

         25             We had a proposal originally that Commissioner Connor



                                                                          157

          1        and I were considering that would have made it a dedicated

          2        tax on cigarettes, liquor, gambling and all those good

          3        things, sin tax, and fund it with that.  We concluded that

          4        that was better left to the Legislature to determine how

          5        to raise that money.

          6             But $9 million, as it relates to children, for

          7        example, as it relates to many other things that we do in

          8        state government, and I don't want to minimize it, but

          9        it's not a great amount to get cleaner elections.

         10             COMMISSIONER CORR:  And I'll wrap up.  The staff

         11        analysis says that 11.6 and change was distributed to

         12        qualifying candidates in '94, about 8.5 million was

         13        transferred from the general fund to supplant the only

         14        2.8 million that had come from the trust fund.

         15             So I guess there are a lot of good things about this

         16        proposal, but I'm concerned about where the money comes

         17        from.  Obviously if there is a trust fund, I think it

         18        would be interesting to set up a trust fund that penalizes

         19        or taxes the contributions from the so-called dirty money

         20        people.

         21             CHAIRMAN DOUGLASS:  We sure wanted to do that, but

         22        you can't do that.

         23             COMMISSIONER CORR:  And you can't do that.  So I

         24        guess the concern is financing elections out of the

         25        general revenue fund.  Maybe some other commissioners can



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          1        address that as well.

          2             CHAIRMAN DOUGLASS:  I guess I would respond to that

          3        by saying that public policy wouldn't mind us spending 8

          4        or $9 million out of the general revenue fund of 42

          5        billion to, every four years, get cleaner elections.  It's

          6        a very, very small amount to pay for the integrity of

          7        government and the view of the public on government, which

          8        is at one of its lower points in history.

          9             And I would also recognize that when times are as

         10        prosperous as they are, it is very difficult to deal with

         11        these issues that relate to any kind of argument that

         12        money is coming out of somewhere else that ought to go

         13        somewhere else.  That argument is available, as I'm sure

         14        those who serve in the Legislature know, on everything

         15        they do in the appropriations bill.

         16             For example, if they appropriate $11 million to a

         17        stadium in one county, which, you know, could happen,

         18        that's not nearly as statewide effective as something that

         19        would try to help with clean money or cleaner elections.

         20        Clean money is the wrong word.  Again, I say nobody can

         21        define clean or dirty money.  It's money.

         22             Any other questions?

         23             COMMISSIONER JENNINGS:  Commissioner Evans-Jones.

         24             COMMISSIONER EVANS-JONES:  Let me see if I'm

         25        understanding this.  Proposal 16 requires you to take the



                                                                          159

          1        public funds whether you want to or not?

          2             CHAIRMAN DOUGLASS:  No, ma'am.  You have to elect to

          3        go under the cap.  If both -- say all candidates, it

          4        doesn't apply to two candidates.  If there is a small

          5        party candidate in there, he can qualify too for some form

          6        of it.  You have to raise your own money, too.  It doesn't

          7        just give you a free ride.

          8             What I'm saying is when it kicks in really is when

          9        one candidate does not accept the cap or doesn't stay

         10        under it.  If both of them stay under it, then it would

         11        not result in any great expenditures in the fund.

         12             COMMISSIONER EVANS-JONES:  I have a further question.

         13        If I chose not to take the money and my opponent chose to

         14        take the money and stay on the cap, then am I still

         15        limited in the amount of money that I can spend when I

         16        don't take any public funding?

         17             CHAIRMAN DOUGLASS:  No.  You're limited, if you agree

         18        to the cap, to raise and spend up to that amount, whatever

         19        the cap may be.  That's set by law now.  Forget the

         20        amount.  What is it?  Does anybody know?

         21             (Off-the-record comment.)

         22             CHAIRMAN DOUGLASS:  5.5 million.  If I elect in

         23        running for governor to agree not to spend or raise more

         24        than 5.5 million, then I'm under the public financing law.

         25        If my opponent says, I'm not going to be held to that



                                                                          160

          1        5.5 million, I can raise 50 million, then it does kick in

          2        and the person who agreed to stay under the cap is

          3        protected by leveling the field when they go above the

          4        cap.

          5             COMMISSIONER EVANS-JONES:  They get the additional

          6        money from the public funds, correct?

          7             CHAIRMAN DOUGLASS:  I'm going to let Commissioner

          8        Connor answer that when he gets up.  I'm not sure I know

          9        the exact answer is the reason I'm not answering.

         10             COMMISSIONER EVANS-JONES:  And let me ask you another

         11        question then.  This now would apply to state senators and

         12        state representatives?

         13             CHAIRMAN DOUGLASS:  No.

         14             COMMISSIONER EVANS-JONES:  What am I reading?

         15             CHAIRMAN DOUGLASS:  We had to sort of revise that in

         16        our committee substitute.

         17             COMMISSIONER EVANS-JONES:  Oh, okay.

         18             CHAIRMAN DOUGLASS:  It only applies to candidates for

         19        statewide office.

         20             COMMISSIONER EVANS-JONES:  I was confused by --

         21             CHAIRMAN DOUGLASS:  I really would like to have done

         22        it, but as a practical matter, I don't think that

         23        extensive of public financing would be practical.  I

         24        think -- however, I would urge the Legislature to enact,

         25        which they could after this is done, something that would



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          1        apply to other elections.  But I think we can leave that

          2        to them.  And a lot of this is left to them, too.

          3             Commissioner Brochin, you had a question.

          4             COMMISSIONER JENNINGS:  The Chair will recognize the

          5        Commissioners.

          6             CHAIRMAN DOUGLASS:  We're changing our procedure

          7        again.

          8             (Laughter.)

          9             COMMISSIONER JENNINGS:  We're timing you, too.

         10             Commissioner Brochin.

         11             COMMISSIONER BROCHIN:  I've been told not to speak

         12        until the Chair recognizes me.

         13             Commissioner Douglass, can you articulate -- as I

         14        understand your explanation, you are explaining to us what

         15        is the current law in Florida now for public financing.

         16        I'd like to hear why we need to place this in the

         17        Constitution.

         18             CHAIRMAN DOUGLASS:  For two reasons; to ensure that

         19        it continues is the main reason, number one.  So that it

         20        cannot be removed by legislative act alone.  And that's

         21        the major reason.  There's great danger of this occurring,

         22        not necessarily with those we have now, but at some later

         23        time it could well be that there would be the ability to

         24        emasculate this or repeal it altogether by someone that

         25        had millions and millions of dollars being in control.



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          1             If it's in the Constitution, the only way it could be

          2        changed would be by a vote of the people and that would

          3        be, I think, very difficult to obtain.  And it would be

          4        not very cost effective if you had to spend $50 million in

          5        order to be able to spend $50 million.

          6             So I think basically the reason it needs to be in the

          7        Constitution is to ensure its permanency, number one, and

          8        to ensure that the minimum requirements are as they are

          9        today.

         10             COMMISSIONER JENNINGS:  Commissioner Langley, further

         11        questions?

         12             COMMISSIONER LANGLEY:  Yes, if I may ask Commissioner

         13        Douglass.  Wasn't this public financing a creature of the

         14        Legislature to start with?

         15             CHAIRMAN DOUGLASS:  Certainly was.

         16             COMMISSIONER LANGLEY:  And it wasn't an initiative,

         17        it was a creation of the Legislature --

         18             CHAIRMAN DOUGLASS:  Absolutely --

         19             COMMISSIONER LANGLEY:  -- to the people.

         20             CHAIRMAN DOUGLASS:  -- the initiative would already

         21        be in the Constitution.

         22             COMMISSIONER LANGLEY:  And in 1996, the Legislature

         23        could have re-funded it.  They could have funded it again.

         24             CHAIRMAN DOUGLASS:  It is funded.

         25             COMMISSIONER LANGLEY:  The trust fund?



                                                                          163

          1             CHAIRMAN DOUGLASS:  The trust fund isn't, but the

          2        election law is funded, the court so held.  I realize some

          3        people may want to argue that but --

          4             COMMISSIONER LANGLEY:  It's on appeal.

          5             CHAIRMAN DOUGLASS:  -- well, it may be on appeal, but

          6        it's pretty open and shut.

          7             COMMISSIONER LANGLEY:  That's not the point,

          8        Commissioner Douglass.  The point of trying to raise this

          9        is the Legislature created it and the Legislature could

         10        have continued to breathe life in it if they, being the

         11        people most responsible to the citizens of this state,

         12        thought that was the right thing to do; is that not right?

         13             CHAIRMAN DOUGLASS:  Commissioner Langley, I'll answer

         14        you by saying, one, they didn't think it was the right

         15        thing to do because they did not repeal the public

         16        financing law.  The allowing to sunset of the trust fund

         17        does not repeal the law.  The law itself is a continuing

         18        appropriation which the court has held in many cases and

         19        already held in this case, and we will probably have that

         20        as the result.

         21             COMMISSIONER LANGLEY:  That issue that you just

         22        argued is on appeal right now, understand.

         23             CHAIRMAN DOUGLASS:  I didn't argue it.  I just stated

         24        that's where it was.

         25             COMMISSIONER LANGLEY:  Okay, well, anyway.  That



                                                                          164

          1        issue is on appeal right now.  What I wonder is aren't we

          2        really trespassing into the Legislature's grounds again?

          3        It's there for them to consider, they created it, they

          4        could cure it.  And, by the way, even if this were to

          5        pass, it's not going to be effective for the 1998

          6        elections, right?  It would not be effective --

          7             CHAIRMAN DOUGLASS:  It wouldn't have to be because

          8        the law currently is effective.  And it is effective for

          9        the '98 elections and it will continue to be.

         10             And I'm answering your question, I'm not up here to

         11        argue with you, but I will if you choose.  But what I'm

         12        saying is that the only way that we can ensure to the

         13        public and the public can be ensured that there will be

         14        public financing to have a level playing field is to put

         15        this into the Constitution because, you know, people like

         16        to think of these things in terms of the moment, not in

         17        terms of the permanent.  And when we put it in there, it

         18        becomes something that will stay in there, in all

         19        probability, because the people want it.

         20             And they don't have to adopt it if they don't want

         21        it.  We have had that argument many times.  But I think

         22        what we're trying to do is to prevent any political party,

         23        whether it be Democrat or Republican, to happen to get

         24        control of everything, like the Democrats used to have it,

         25        and turn around and make it possible and probable for



                                                                          165

          1        large money to control our statewide elections.

          2             Now, I am not saying that either party would do that

          3        that's now in existence, the way it's controlled.  And no

          4        candidate here do I wish to even involve in the

          5        discussion.  But I'm telling you that it's much safer in

          6        this area.  And I think the public does not trust the

          7        Legislature enough to continue -- well if they do, then

          8        they can respond to your argument and vote this down.

          9             COMMISSIONER LANGLEY:  So your answer to my question

         10        about whether or not the Legislature could have re-funded

         11        it is yes?

         12             CHAIRMAN DOUGLASS:  My answer to your question is the

         13        Legislature did re-fund it.

         14             COMMISSIONER LANGLEY:  Well in fact, they didn't fund

         15        the trust fund.

         16             CHAIRMAN DOUGLASS:  The trust fund is no longer in

         17        existence.

         18             COMMISSIONER LANGLEY:  That's right, it expired.

         19             CHAIRMAN DOUGLASS:  They could not re-fund the trust

         20        fund because it sunsetted under the Constitution.  The

         21        Legislature did not sunset it, it was done by the

         22        Constitution.

         23             COMMISSIONER LANGLEY:  And that reads, unless it is

         24        reenacted.

         25             CHAIRMAN DOUGLASS:  It could have been reenacted,



                                                                          166

          1        certainly.

          2             COMMISSIONER LANGLEY:  Thank you.

          3             COMMISSIONER JENNINGS:  For edification of the group,

          4        the Legislature did not reenact it.

          5             CHAIRMAN DOUGLASS:  That's exactly right, and it

          6        sunsetted, under the Constitution.

          7             COMMISSIONER JENNINGS:  Under the constitutional

          8        provision that makes us reenact all trust funds on a

          9        periodic basis.

         10             CHAIRMAN DOUGLASS:  Right.  And that is a sunset,

         11        right?  I mean, what we call a sunset anyway.

         12             COMMISSIONER JENNINGS:  Commissioner Connor, are you

         13        ready at this point to speak?  I know perhaps you are

         14        going to include this in your talk, but since you and

         15        Commissioner Crenshaw have actively participated in this,

         16        maybe for the body if you weren't going to you could sort

         17        of explain how it works.  That would probably help us all.

         18             COMMISSIONER CONNOR:  Thank you, Madam Chair.

         19             Mr. Brochin, if may respond directly to your

         20        question, Why should this be in the Constitution?  Article

         21        I, Section 1, of the section reads as follows:  "All

         22        political power is inherent in the people."

         23             The purpose, ladies and gentlemen, of this proposal

         24        is to restore public confidence in the electoral process.

         25        The people feel, and I believe in many respects they are



                                                                          167

          1        justified, in believing that the government and the

          2        political power no longer reposes in the people, but

          3        rather reposes in the special interests.

          4             The political reality of the day, very frankly,

          5        ladies and gentlemen, is that special interests typically

          6        invest in political campaigns as a cost of doing business,

          7        looking for a return on their investment, if they ride the

          8        right horse.  And all too often that return comes from the

          9        public treasury.  Now that's the reality of life.  We see

         10        that occur on a regular basis in the state of Florida.

         11             Now you can look a lot of the so-called special

         12        interest representatives in the eye and they will look at

         13        you with a straight face and say, Look, all we're buying

         14        is access, we're not buying influence.  Ladies and

         15        gentlemen, I ask you, since when should we in Florida have

         16        to pay to access our public officials?  On the face of it,

         17        I would suggest to you that that bespeaks a very

         18        significant problem.  Does that mean if you don't pay for

         19        access you don't get it?

         20             I will guarantee you there are lots of folks who

         21        don't contribute to political campaigns who would say, the

         22        answer to that question is yes.  We don't have access, but

         23        the big ticket check writers do.  And the purpose here is

         24        to help restore public confidence in the electoral process

         25        and to ensure that political power remains and really is



                                                                          168

          1        inherent in the people.

          2             And this is a vehicle in the Constitution to insure

          3        that Article I, Section 1, is more than mere boilerplate.

          4        And so I view it as an important part of this

          5        Constitution.  We are in danger because of this

          6        I'm-only-buying-access-not-influence, I would submit to

          7        you, of turning state government into a banana republic.

          8             I can't tell you how many times I have seen citizen

          9        lobbyists up for Dade Day or Broward Day or up for one

         10        group or another who have their particular day in the

         11        Legislature.  They come up in blue jeans and T-shirts,

         12        have "Broward" written on the shirt, have on a straw hat

         13        and they are pumped up and looking forward to

         14        participating in the process.

         15             They push that button, they get off on the fourth

         16        floor, they see that hoard of lobbyists in three-piece

         17        suits and spiked heels and whatnot, they look out on that

         18        group, their eyes pop out, they are totally intimidated

         19        and they say, We can't play in this ball game, no way, no

         20        way.

         21             Now I'm going to tell you, that happens every day in

         22        state government at every level of state government.  And

         23        if you think to the contrary, you are just being naive and

         24        you are not willing to confront the reality of the way

         25        this system is working.  The effect of that has been an



                                                                          169

          1        increasing erosion of public confidence in the electoral

          2        process.

          3             Let me tell you three ways in which that's reflected.

          4        One, it's reflected in turnout rate.  People don't believe

          5        they can make a difference.  So what, I can't make any

          6        difference.  Number two, it's reflected in the increasing

          7        number of petition initiatives that are being filed in the

          8        state.  They think state government is being unresponsive

          9        to the need and the will of the people and so they say,

         10        Golly, we're just going to have to claim the fruits of

         11        Article I, Section 1, political powers are inherent in the

         12        people, and we're going to have to do an end run.

         13             And where has the impetus come from to raise the bar,

         14        to raise the threshold from citizen initiatives to make it

         15        a supermajority, not a majority requirement?  Special

         16        interests.  Why, the only thing the Florida Bar and

         17        Florida Academy of Trial Lawyers and the Florida Medical

         18        Association have been able to get together on is, oh, my

         19        goodness, let's not really give life to all political

         20        power is inherent in the people because our picnic may

         21        soon be over.

         22             Why did the Libertarian Party have come to this body

         23        to say, Please, please level the playing field, let's

         24        provide for ballot access?  Because they couldn't make a

         25        dent.  I mean, when was the last time you read about some



                                                                          170

          1        big time Libertarian PAC giving money to anybody?  Hey,

          2        I'm telling you, this is the reality of life as we know

          3        it.

          4             Term limits; why did the voters cry for term -- why

          5        did they affirm Eight Is Enough overwhelmingly?  Because

          6        they are looking for people who will represent the

          7        people's interest and they are tired of the inordinate and

          8        disproportionate influence of the special interests in

          9        government.  Let's give life to the meaning of the words

         10        "all political power is inherent in the people" and not

         11        treat it as mere empty and vacuous words.

         12             Now not many folks heard about my candidacy for

         13        governor in 1994.

         14             (Laughter.)

         15             And -- but I will tell you this:  I could not have

         16        launched a campaign, I could not have maintained a

         17        campaign, I couldn't have participated in a campaign

         18        without the benefit of public financing.  And in the

         19        beginning, I was the only Republican candidate who

         20        affirmed that he was going to participate in public

         21        financing.

         22             And I was running against some very well-qualified

         23        and very well-respected folks, three of whom decided that

         24        that wasn't such a bad idea after all, even though the

         25        chairman of our party decried public financing.  At first



                                                                          171

          1        I thought I was in it by myself.  But, you know, people

          2        follow my leadership and they decided, you know, we

          3        probably ought to participate in this thing.

          4             And, ladies and gentlemen, I wasn't under any

          5        illusion about my starting position in the gate.  But I

          6        will tell you that I had a relationship with a grassroots

          7        movement of people all over who felt disenfranchised and

          8        unresponded to by government.  And having the opportunity

          9        to participate in this way with public financing made that

         10        candidacy possible.

         11             And I can tell you from that experience in terms of

         12        the cost to me in business and personally that unless you

         13        are well-financed by special interests or unless you have

         14        great wealth, you can forget about running successfully

         15        for statewide office without the benefit of this kind of

         16        problem, unless you're already an incumbent with

         17        well-established name recognition and already in

         18        government.

         19             Now, even after doing that, I wound up having to file

         20        suit in order to compel the secretary of state's office to

         21        release the funds that I was entitled to under the law.

         22        And then again after winning that suit in the court -- I'm

         23        a firm believer there is a place for courts, popular

         24        opinions to the contrary notwithstanding.

         25             (Laughter.)



                                                                          172

          1             And my colleagues in the race patted me on the back

          2        and congratulated me for my leadership in preserving the

          3        access to the public funds that had been passed by the

          4        Legislature.

          5             Ladies and gentlemen, I never found any difficulty in

          6        Republican arenas where I was campaigning and explaining

          7        my position on public financing.  I took the position very

          8        simply.  I said, Folks, when it comes to accepting public

          9        funding to promote the public interest as opposed to

         10        taking special interest money to promote the interest,

         11        I'll support the public interest every day.  And there

         12        wasn't a problem with that, I'll just tell you.

         13             You may think this is a partisan issue; it is not a

         14        bipartisan issue.  That's why I'm proud to join Chairman

         15        Douglass in sponsoring this proposal because this is good

         16        for the people of Florida, this helps ensure that

         17        political power remains inherent in the people, and it's

         18        designed to ensure that government is responsive to all of

         19        the people, not just a privileged few who have the

         20        financial capacity to bankroll campaigns.  Thank you.

         21             COMMISSIONER JENNINGS:  Thank you.  Commissioner

         22        Barkdull, for what purpose?

         23             COMMISSIONER BARKDULL:  To ask a question of

         24        Commissioner Connor.

         25             COMMISSIONER JENNINGS:  You're recognized.



                                                                          173

          1             COMMISSIONER BARKDULL:  Commissioner Connor, I

          2        noticed in the last sentence of Section 7 that you

          3        proposed, it says, the Legislature shall provide

          4        sufficient funding for this provision.  Do you follow

          5        where I am?

          6             COMMISSIONER CONNOR:  Yes, sir.

          7             COMMISSIONER BARKDULL:  How would that be enforced if

          8        the Legislature determined not to do that?

          9             COMMISSIONER CONNOR:  Usually enforcement comes about

         10        through filing suit and resorting to judicial review.

         11             COMMISSIONER BARKDULL:  Well, I ask this question, I

         12        plan to support this proposal, but if this language means

         13        what you just said, and I hope it does, this may help

         14        Commissioner Mills and his select committee on how to get

         15        the money for Article V.

         16             COMMISSIONER CONNOR:  You know that I am a firm

         17        believer in keeping issues separate so we can go up or

         18        down on the merits of the narrow issue before us and not

         19        clouding or burdening one issue with another.

         20             COMMISSIONER BARKDULL:  But I would think the same

         21        language in several places in the Constitution would

         22        certainly get the same construction.

         23             COMMISSIONER CONNOR:  You ought to advocate that in

         24        your committee.

         25             COMMISSIONER JENNINGS:  Commissioner Langley.



                                                                          174

          1             COMMISSIONER LANGLEY:  Question of Commissioner

          2        Connor or Commissioner Douglass.  I'm a little bit

          3        confused.  If you were the candidate who had elected to

          4        receive public funds and the other candidate, incumbent

          5        perhaps, chose not to because he had great money-raising

          6        capacity, and you had done your limits and he went to

          7        $15 million, where does that other $10 million come from?

          8             COMMISSIONER CONNOR:  That's a good question.  And

          9        the way it worked is that it came from the public

         10        treasury.  Here is the way it worked --

         11             COMMISSIONER LANGLEY:  So there is no limit.

         12             COMMISSIONER CONNOR:  -- as I understand it, and I'm

         13        subject to being corrected.  The way it worked was this --

         14        and I would have changed the order, Commissioner

         15        Evans-Jones, from the way in which Chairman Douglass

         16        mentioned it.  Rather than saying if you accept the cap

         17        you can get the public financing, the way I perceived it

         18        was if you agree to accept public financing, then you also

         19        agree to a spending limit.

         20             The purpose, again, here has been to level the

         21        playing field and if your opponent -- and then your

         22        opponent has the opportunity to limit his or her spending

         23        as well.  In other words, if the limit were $5.5 million

         24        and your opponent said, I'm going to limit my campaign to

         25        $5.5 million, then you are both under that limit.



                                                                          175

          1             But if your opponent had a huge war chest capacity

          2        and could raise however many millions of dollars he or she

          3        could raise, then the effect of that was that the spending

          4        limits were off and that you could continue to receive

          5        public funding up to the level of what was spent.  That's

          6        my understanding of it.

          7             Now, so in response to Commissioner Corr but

          8        amplifying on his question, is that a good use of public

          9        funds?  I would submit to you that it is for this reason:

         10        That through the public financing and empowerment it gives

         11        to ordinary people, and the ability to enable them to

         12        respond to ordinary people, I dare say that when we come

         13        down to the budgetary priorities and the spending patterns

         14        of the state, that you're going to see a change in the way

         15        we spend our money in this state.

         16             Why, you know, you might see more money spent on

         17        education.  You might see more money spent on health care.

         18        You might see more money spent in areas where there are

         19        not the same kinds of constituents as you see married up

         20        to a lot of money.  Children may occupy a more prominent

         21        role in the state budget.  There are just a lot of good

         22        things I would submit to you that may happen and are

         23        likely to happen when and if political power really is

         24        found to be inherent with the people.

         25             So you can look at this in one very narrow sense as a



                                                                          176

          1        trade-off.  You'll say, Well, if we spend $9 million over

          2        here on elections, there will be $9 million taken away

          3        from some other -- on the face of it that sounds good, as

          4        if it was a zero sum gain.  But I would submit to you, the

          5        reality of it will be you'll see a reallocation of the way

          6        in which public officials spend the people's money in

          7        order to accomplish the priorities that are deemed to be

          8        important to the people.

          9             COMMISSIONER JENNINGS:  Further questions?

         10        Commissioner Morsani.

         11             COMMISSIONER MORSANI:  I would like to ask the two

         12        presenters, everyone has made a rather major point out of

         13        all political power is inherent in the people.  Then could

         14        we assume that you would modify your proposal to state

         15        that there would be no PAC money received by any of these

         16        candidates?

         17             COMMISSIONER CONNOR:  I will respond directly to

         18        that.  Commissioner Morsani, in the campaign --

         19             COMMISSIONER MORSANI:  I'm reading the first line.

         20        Read me the first line, please.

         21             COMMISSIONER CONNOR:  In the campaign I was involved

         22        in, I was the only candidate who took public funds that

         23        said, because I'm taking public funds, I'm not going to

         24        take money from PACs or lobbyists, either one.  That was a

         25        voluntary-imposed limit, I wasn't required to do that.



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          1        Some who took public money also took money from lobbyists

          2        and PACs.

          3             Now, I would suggest this:  There may well be federal

          4        constitutional problems that arise from providing that in

          5        the state Constitution because the United States Supreme

          6        Court has in effect said that you can't prevent people

          7        from giving money because that's a form of expression.

          8        But, but, people can agree not to take money from PACs or

          9        lobbyists or whomever.

         10             And I dare say that the Legislature, as part of its

         11        implementing legislation for these proposals, could say

         12        that those who elect to participate in the public campaign

         13        financing as a condition precedent to enjoying the

         14        benefits of that money must be willing to forbear to take

         15        this other money.

         16             So I think that is very -- I would encourage the

         17        Legislature -- Madam Chairman, I would encourage you

         18        today, as it relates to public campaign financing, to

         19        affirm and adopt that kind of requirement.  So I think

         20        that can be done legislatively.  I don't think you can

         21        necessarily put that into the state Constitution.  Sort of

         22        like a contract, if you will.  I think people can

         23        voluntarily agree to do it.

         24             COMMISSIONER MORSANI:  The reason I asked the

         25        question, if you're going to create this vehicle, I




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          1        actually endorse it.  But, I -- going back for just a

          2        moment.  I was an advocate who tried hard not to get PACs

          3        in this country and the federal government in 1970,

          4        whatever year we finally got that accomplished, if they

          5        had refused to allow -- to take PACs away from labor

          6        unions and otherwise, we wouldn't have PACs today.

          7             And I think they have eroded our system both on a

          8        state and national scene.  But you gentlemen and ladies

          9        who are of the legal profession here, you don't think that

         10        this -- if you are going to ask for this, which I would

         11        endorse, but are we out of line by saying you can't limit,

         12        you can't do away with PACs under the same provision?

         13        Which comes first, the chicken or the egg?

         14             COMMISSIONER CONNOR:  You can't do away with PACs in

         15        the state Constitution as I perceive the existing

         16        constitutional landscape.  But what you can do,

         17        Commissioner Morsani, in an effort to re-empower the

         18        people, is say, Now, if you want to participate in this

         19        program it comes with certain strings.  Hey, you don't

         20        have to participate in this program, but if you do and if

         21        you take the money as a condition thereof, then you're

         22        going to have to limit your contributions because we're

         23        trying to accomplish this particular purpose.

         24             COMMISSIONER MORSANI:  But the Legislature can, the

         25        Legislature can take that action.



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          1             COMMISSIONER CONNOR:  In my estimation it can.

          2             COMMMISSIONER JENNINGS:  Commissioner Morsani, just

          3        as an aside, we actually did debate this last year in the

          4        Legislature, at least in the Senate, the issue of campaign

          5        contributions from Political Action Committees and from

          6        natural persons only and from organizations in our fairly

          7        comprehensive statutory change to the election laws.  And

          8        at that point we did not find that we had a potential for

          9        a problem, statutorily.

         10             COMMISSIONER MORSANI:  Didn't have potential?

         11             COMMISSIONER JENNINGS:  Did not.  We didn't pass it,

         12        but it was offered as an amendment and discussed.

         13        Commissioner Barkdull.

         14             COMMISSIONER BARKDULL:  Would Commissioner Connor

         15        rise and walk me through the way this works?  As I

         16        understand what you have said, there is a cap of

         17        $5.5 million in a gubernatorial race --

         18             COMMISSIONER CONNOR:  Yes, sir.

         19             COMMISSIONER BARKDULL:  -- public financing.  If you

         20        agree to take public financing and your opponent doesn't,

         21        we will just assume you have got one opponent for the

         22        moment, as I understand it, the candidate that agrees to

         23        take public financing would have to raise $2.75 million

         24        that would be matched by 2.75 million to get the

         25        5.5 million.



                                                                          180

          1             COMMISSIONER CONNOR:  I can't tell you that it is a

          2        one-to-one match; there is a ratio of match.  In other

          3        words, you do have to -- for every private dollar that's

          4        given, there is -- under the current law, after you raise

          5        a certain threshold of money, thereafter a match takes

          6        place on a proportional basis, on a one-to-one basis.  So

          7        it doesn't work out to be one-to-one from first dollar.

          8             COMMISSIONER BARKDULL:  But it is some kind of a

          9        match.

         10             COMMISSIONER CONNOR:  Yes, sir.

         11             COMMISSIONER BARKDULL:  Now you reach the cap of

         12        5.5 million.

         13             COMMISSIONER CONNOR:  Yes, sir.

         14             COMMISSIONER BARKDULL:  Your opponent doesn't go but

         15        5 or 5.3 million or 5.5, and everything stays level.

         16             COMMISSIONER CONNOR:  Yes, sir.

         17             COMMISSIONER BARKDULL:  Now your opponent goes to

         18        20 million, let's make it 20,500,000 so we are only

         19        talking about an additional --

         20             COMMISSIONER CONNOR:  You can continue to get the

         21        match.

         22             COMMISSIONER BARKDULL:  It is a match?

         23             COMMISSIONER CONNOR:  Yes, sir.

         24             COMMISSIONER BARKDULL:  So the candidate that agreed

         25        to accept public financing has to raise some funds --



                                                                          181

          1             COMMISSIONER CONNOR:  Oh, yes, sir.

          2             COMMISSIONER BARKDULL:  -- to continue the match.

          3             COMMISSIONER CONNOR:  Yes, sir.  And one of the

          4        reasons for the threshold requirement, as I perceive it,

          5        is that the candidate has to demonstrate that they have

          6        got some --

          7             COMMISSIONER BARKDULL:  Some viability.

          8             COMMISSIONER CONNOR:  -- out in the arena.

          9             COMMISSIONER BARKDULL:  Now carrying that just a step

         10        further, and I think this goes into what Commissioner

         11        Langley was headed for, let's suppose you have got

         12        somebody that's well-heeled, and under the Supreme Court

         13        of the United States cases they have got a right to spend

         14        their own money.

         15             COMMISSIONER CONNOR:  Yes, sir.

         16             COMMISSIONER BARKDULL:  And they say, Well, I'm going

         17        to spend 50 million, now we are way above the cap.  But if

         18        the candidate that's agreed to take public financing can

         19        continue to raise funds, he gets a match --

         20             COMMISSIONER CONNOR:  Yes, sir.

         21             COMMISSIONER BARKDULL:  -- up to that limit.  And he

         22        will have to raise probably one-for-one almost above that.

         23             COMMISSIONER CONNOR:  Sure, and we could take it to

         24        150 million.  I mean, we can take it up to however high

         25        one wants to take it, hypothetically, but of course there



                                                                          182

          1        are some realities that take place that --

          2             COMMISSIONER BARKDULL:  But the point is that what

          3        the cap is is an economic cap by how much the opponent

          4        that doesn't take the public financing is willing to

          5        raise, or can raise.

          6             COMMISSIONER CONNOR:  The cap is lifted if your

          7        opponent does not agree to limit their spending.

          8             Now one of the advantages of that is that public

          9        pressure can be brought to bear in the political arena.

         10        Say, look, let's stay within the spending limit.  If the

         11        public is concerned that the public money that be spent in

         12        a campaign and involves more than the cap, they can call

         13        on the other side not to spend their money inordinately.

         14        Now, frankly, one of the benefits of the cap on spending,

         15        I think, is it promotes an efficient use of funds in a

         16        campaign, number one.

         17             Number two, in a campaign when you talk about

         18        promoting the efficient use of funds then it promotes the

         19        maximum contact with the people.  Why?  Because you are

         20        trying to get the votes.  So I think spending limits, you

         21        know, which is part of a public financing campaign that

         22        has a spending cap, benefits people in a lot of different

         23        ways.

         24             Because I'll tell you, what the people want is

         25        contact with these folks on the stump, they want to have



                                                                          183

          1        access to them, they want to be able to talk.  If you can

          2        just buy all the TV time that you can get, you know, you

          3        don't ever have to have any real contact with the people.

          4             And so I think this is a good proposal and welcome

          5        any improvements to it.

          6             COMMISSIONER BARKDULL:  Would you believe me, sir,

          7        that I would expect that you found out that a political

          8        campaign was about the most inefficient organization you

          9        ever got associated with?

         10             COMMISSIONER CONNOR:  Yes, sir.

         11             COMMMISSIONER JENNINGS:  Commissioner Brochin.

         12             COMMISSIONER BROCHIN:  I'd like to add a little

         13        clarity because I'm not sure it is exactly right.  The cap

         14        is 5.5 million today because it has been adjusted for an

         15        inflation of 5 million from the 1994 campaign.

         16             COMMMISSIONER JENNINGS:  And will continue.

         17             COMMISSIONER BROCHIN:  And will continue.  The

         18        statute allows increases for each campaign so it goes up.

         19        It is a one-for-one dollar match.  Once the 5.5 is

         20        exceeded, the participating candidate need not raise any

         21        other dollar, it is one-for-one.  However -- matching the

         22        nonparticipating candidate's expenditure.

         23             So, for example, if the nonparticipating candidate

         24        spends $7.5 million, the public fund would fund the

         25        difference between 7.5 and 5.5, or $2 million,



                                                                          184

          1        straightforward, without the participating candidate

          2        raising any funds.

          3             However, there is a cap that it is not to exceed

          4        twice the amount of the cap for $11 million.  So if the

          5        cap is at 5.5, that one-for-one dollar participation match

          6        goes up, up to $11 million.  So if that nonparticipating

          7        candidate spent $15 million, the participating candidate

          8        would not get a match beyond $11 million.  However, that's

          9        just the statutory provision.  That's what the statutory

         10        scheme provides for.

         11             And also, Commissioner Morsani, in part of the PAC,

         12        the public financing money that people participate in,

         13        does exclude PAC money to this extent:  Funds that are

         14        matched for public dollars are only matched if an

         15        individual contributes to the campaign and it only matches

         16        up to $250 of that.  So if a PAC gives money to the

         17        participating candidate, the participating candidate

         18        doesn't get a dollar match from the PAC contribution or

         19        the corporate contribution or labor organization.

         20             The participating candidate only gets a dollar match

         21        if he went out or she went out and got a dollar from an

         22        individual, and only up to $250.  Indeed, federal law

         23        prohibits corporate contributions and contributions from

         24        labor organizations and contributions from trade

         25        associations.  And last time I looked, I think there is a



                                                                          185

          1        proposal out there that would so limit those contributions

          2        on the state level as well.

          3             COMMMISSIONER JENNINGS:  Commissioner Corr, and isn't

          4        that proposal yours?  Do you have a proposal to limit --

          5             COMMISSIONER CORR:  There were a few of them

          6        actually, that's right.  And I'll try to be brief because

          7        I know we are needing to move along.  But, Commissioner

          8        Connor, also pardon my frustration because this is

          9        something that I've been very concerned about.  I think

         10        Commissioner Morsani touched on something very insightful.

         11             I brought proposals to the floor here that restrict

         12        contributions from anybody that could not vote for the

         13        candidate, and there were a lot of red lights when that

         14        came up.  I brought another proposal that said only

         15        contributions could be made by natural persons, and the

         16        lights were red when that one came up.  Another proposal

         17        eliminated PACs, and the lights were very red when that

         18        came up.

         19             There was another one that actually had a lot of red

         20        lights and laughter because after all those failed I said,

         21        Well, the only thing we can do I guess is make sure the

         22        disclosure is as apparent to the voters as possible.  We

         23        said, Let's just make all the contributions disclosed

         24        right on the ballot and that was I think laughed at quite

         25        a bit and it moved on.



                                                                          186

          1             But I am feeling some frustration here that in

          2        working with Common Cause and working with the Women's

          3        League of Voters and others that have concerns here that

          4        there seems to be no way, no way to fix this, no way to

          5        fix the problem of special interests, et cetera, that are

          6        controlling our elections.  I agree with the Eight Is

          7        Enough example.  That's the reason we have Eight Is Enough

          8        today.  It is the only solution that the voters could go

          9        for.

         10             But I think what we are hearing with this public

         11        financing solution is not really answering all those

         12        questions.  What could happen, as Mr. Morsani pointed out,

         13        is now we had a candidate that's receiving, quote, the

         14        dirty money, the money from the PACs and lobbyists and

         15        whoever else, and they're receiving money from taxpayers.

         16             And the point you made, Commissioner Connor, about

         17        getting better, more grassroots-focussed individuals

         18        elected to office as a result of that, I'd love to believe

         19        that.  But I think what's happening is basically what you

         20        are getting is not only someone who is agreeing to take

         21        any money from anybody that could give it to them, but

         22        they are also being the opportunist and taking the public

         23        financing as well.

         24             And so what we are having is somebody who finds their

         25        way into office, and then I bet four years later they are



                                                                          187

          1        going to be having a campaign account that's filled with

          2        the word PAC after it.

          3             The first time you run for office against an

          4        incumbent, you hate PACs and you go to every campaign

          5        meeting and you go to every public meeting and you talk

          6        about how they are the scourge of the earth.  Then when

          7        you finally get elected, if you do by accident, if you are

          8        one of the small percentage of people that knocks off one

          9        of those incumbents, all of a sudden you kind of forget

         10        that.  And then they keep you in office from there on out.

         11        So I'm not sure that I buy that.

         12             I think Commissioner Morsani brought up a good

         13        opportunity.  What you are trying to do with this proposal

         14        is encourage better behavior in the election.  So why

         15        don't we also encourage those candidates to not accept

         16        that money from the Political Action Committee, the

         17        lobbyist, whoever else it would be?  Maybe we could look

         18        at an amendment that would encourage them to do that as

         19        well.

         20             COMMISSIONER CONNOR:  May I respond?

         21             COMMMISSIONER JENNINGS:  Please.

         22             COMMISSIONER CONNOR:  And I would earnestly seek the

         23        advice of my colleague, the Chairman.  I make this

         24        observation, if I correctly understood Commissioner

         25        Morsani's point, it was oriented to whether or not we



                                                                          188

          1        could do away with PACs, we can't.  Now I believe that we

          2        can fairly establish a regime for public financing that

          3        provides, if it is the will of the body and the will of

          4        the people, that if you take public monies that you would

          5        have to agree to forbear to take other monies.

          6             I think you might, I think you conceivably could do

          7        that in the state Constitution and pass constitutional

          8        muster, federal constitutional muster.  I'm not sure it is

          9        the most prudent way to go, frankly, because I'm not sure

         10        that the implementation of the public financing law is not

         11        best left to the Legislature.

         12             What the Chairman's proposal provides here is that

         13        absent the Legislature taking another tack, the existing

         14        legislative framework will apply.  But as a matter of

         15        public policy, I think it is meritorious to say if you

         16        take public money to promote the public interest, then we

         17        are going to ask you to agree to limit the contributions

         18        from other interests.  That may -- if it is the sense of

         19        the body that that needed to be included, I would be open

         20        to it; I'm not sure where my colleague stands.

         21             But, frankly, I think from a prudent standpoint, we

         22        have a better chance of passing this proposal, I think, by

         23        leaving those kinds of details to the Legislature.

         24             COMMMISSIONER JENNINGS:  Commissioner Barkdull.

         25             COMMISSIONER BARKDULL:  I'd like to interrupt the



                                                                          189

          1        proceeding just to make an announcement.  Many of you

          2        asked about tomorrow.  We polled the floor, 27 people have

          3        said they would be here.  We will have a calendar, we will

          4        meet tomorrow, we will adjourn by 1:00.

          5             COMMMISSIONER JENNINGS:  Thank you for that.

          6        Commissioner Corr.

          7             COMMISSIONER CORR:  I want to respond to Commissioner

          8        Connor.  I would just kind of echo that and say I'd like

          9        to see if we can take a few minutes and look at that as an

         10        amendment because I think your language here, right here,

         11        as bold as it could possibly be that says what we are

         12        trying to do in the Constitution is take out the

         13        disproportionate influence of special interests.  Well, if

         14        that's what we are trying to do, we ought to at least try

         15        and encourage, that encouragement in the Constitution

         16        along with this.

         17             I understand how it can be done by the Legislature,

         18        this whole thing can be done by the Legislature.  So --

         19        and I'd like to see if we can take a minute and work

         20        something out on that.

         21             COMMMISSIONER JENNINGS:  Commissioner Douglass.

         22             CHAIRMAN DOUGLASS:  I don't think that we should do

         23        that with this proposal.  I think there is a proposal

         24        that's going to come before the body that deals with the

         25        subject you are concerned with.



                                                                          190

          1             I do think, if I'm correct, and Commissioner Brochin

          2        probably knows more about this law than any of us, that

          3        you are still limited insofar as your public financing

          4        participation to $250 for matching money, no matter

          5        whether it comes from PACs or individuals or others; is

          6        that correct?

          7             COMMISSIONER BROCHIN:  No, I think to match it has to

          8        be $250 from an individual.

          9             CHAIRMAN DOUGLASS:  So the PACs do not trigger any,

         10        except what they give to your opponent if he doesn't elect

         11        to stay within the cap.

         12             COMMISSIONER BROCHIN:  They don't trigger matching

         13        funds.

         14             CHAIRMAN DOUGLASS:  Correct.

         15             COMMISSIONER BROCHIN:  You can still receive PAC

         16        money under the $5.5 million cap.  Cap is one thing,

         17        that's how much you can spend.  The other issue is how

         18        much is going to be publicly financed.  And it can only be

         19        financed up to the amount the individual gives, which

         20        means it encourages individuals to give and not PACs.

         21             CHAIRMAN DOUGLASS:  And what happens is if I raise

         22        5.5 million and I have elected to go under public

         23        financing, no matter where I have raised it I can't spend

         24        over that if I have elected to go under public financing.

         25             COMMISSIONER BROCHIN:  Right.



                                                                          191

          1             CHAIRMAN DOUGLASS:  So it would be a deterrent to

          2        that.  And I think -- we all agree that this is a problem

          3        in our government.  We also all agree that to put this in

          4        the Constitution, I think those that have dealt with it,

          5        to try to couple it with this type of proposal would not

          6        be appropriate because we would be raising a

          7        constitutional question on the whole statute that might

          8        now exist even, and also certainly a constitutional

          9        question on this proposal, federal constitutional

         10        question.

         11             And I think if we are really serious about starting

         12        this program in this fashion, to try to get clean

         13        elections, that we should adopt this proposal and move

         14        forward in the other areas.  You can only do so much at

         15        one time and this is what we all believe is the way to go,

         16        including the League of Women Voters and Common Cause and

         17        others.

         18             COMMMISSIONER JENNINGS:  Mr. Chairman, Commissioner,

         19        aren't I correct that we could take up a proposal by

         20        Commissioner Corr at some later date that would deal with

         21        this and style and drafting could at some point put them

         22        together, if in fact they both passed?

         23             CHAIRMAN DOUGLASS:  That is correct, we could do

         24        that.

         25             COMMMISSIONER JENNINGS:  We already jumped over that



                                                                          192

          1        one, I knew it was on there.  Commissioner Evans-Jones.

          2             COMMISSIONER EVANS-JONES:  I have a question.  Do you

          3        think that the public has been generally better informed

          4        since we have been having television debates between say

          5        the gubernatorial candidates?  Do you think that has been

          6        helpful?

          7             CHAIRMAN DOUGLASS:  I'm not an expert on that at all.

          8        I think the gubernatorial debates certainly do afford a

          9        focal point for supporters.

         10             And what really happens in a lot of these things, as

         11        all of you who have been in politics know, these events

         12        are as important for your supporters to get them enthused

         13        and out working as it is for the actual result of the

         14        debate.  And I think to some extent we may put an

         15        overemphasis on the debate.  What it does is stir up

         16        interest in the election and maybe get more people to

         17        vote.

         18             But if my candidate scores, then I'm going out the

         19        next morning and say, Hey, my guy beat your guy and here

         20        is why he did.  So from that standpoint, I would have to

         21        say, sure, the debates have a great function here and they

         22        are generally in the control of the candidates.  They

         23        don't have to do it, and some of them don't.

         24             COMMISSIONER EVANS-JONES:  Well, further questioning,

         25        I'm just trying to get straight in my own mind.  I know



                                                                          193

          1        that we can't require the television companies to sponsor

          2        debates.  But to me, that is impartial, the candidates who

          3        are running for statewide office are given an opportunity

          4        to present their views to the general public in a fair

          5        manner.

          6             And I would feel much more comfortable having public

          7        funds designated for something like that where there would

          8        be equity for all candidates.  And I would be better

          9        informed as a person who wants to vote.

         10             CHAIRMAN DOUGLASS:  I agree with what you are saying.

         11        I think, however, that the overall thrust of any statewide

         12        election, how well you do is tied directly to the amount

         13        of money that you spend on advertising on television and

         14        in hiring people that know how to shape these things to

         15        spin whatever it is you are trying to sell.

         16             And I think that that's true.  I think the debates

         17        that we are talking about, there will not be many, but

         18        they will be even-focused in those ads, in many instances,

         19        and are.  So I think if you wanted to have the public pay

         20        the television stations to run the debates, that that's a

         21        matter that would be left to the Legislature.

         22             We can't -- unfortunately, the press is owned by

         23        large, or the media I should say, by large corporations

         24        and they're concerned with the bottom line.  And therefore

         25        they look forward with great anticipation to get all these



                                                                          194

          1        funds we are talking about for advertising.  And in order

          2        to at least in some way return to the public some of their

          3        investment, they have debates when the candidates will do

          4        it.

          5             But debates haven't always been anything other than

          6        perhaps places where the newspeople on the TV can run

          7        clips of them and keep it going.  But they are fun and

          8        they are good and they do illuminate differences in the

          9        candidates.

         10             For example, in the last election, and I don't want

         11        to give too many examples but I have a very good friend in

         12        Texas who is a George Bush man, raised big money and a big

         13        Republican, but we are real close friends and have been.

         14        And he calls and we talk a lot.

         15             And he called me one night after the debate that the

         16        Governor and the candidate that he opposed debated and he

         17        said, I watched your man on debate and he is going to win.

         18        And I said, Well, now as an old Texan, how can you tell

         19        that?  He said, Well, he said, I watched this and he said,

         20        Your man got back all those good all Texas-type crackers

         21        or enough of them that he is going to eke out the victory.

         22        I know he was losing them.

         23             But he said, My man didn't quite get that vote and

         24        hold it and the debate is going to make a difference.

         25        Well I don't know whether he was right or not.  It turned



                                                                          195

          1        out that -- and we don't know why anybody wins an

          2        election.  Everybody has a claim on it, but the candidate

          3        wins it or loses it.  We like to say we won it or

          4        so-and-so won it, but the candidate in the end, all things

          5        being equal, the candidate is the one, the sacrifices he

          6        makes and the position he takes.

          7             But what I'm really saying is every illumination we

          8        get, as long as it's fair and equal, like these debates,

          9        are what we are trying to do so the public can made an

         10        intelligent decision.

         11             COMMISSIONER EVANS-JONES:  So the Legislature, if

         12        they wanted to, could put some public funds into these

         13        kind of debate situations for all the candidates and maybe

         14        some of us would feel more comfortable that that was money

         15        well spent, fairly spent and a real education for the

         16        general public.

         17             CHAIRMAN DOUGLASS:  They could do that, you know.  I

         18        don't know that, how I would stand on it if I was in the

         19        Legislature, but obviously they could do that.

         20             COMMMISSIONER JENNINGS:  Well, Commissioner Douglass,

         21        the Legislature, and Commissioner Evans-Jones will

         22        remember, the Legislature does substantial funding to

         23        public television, of which there are a number of stations

         24        that probably cover the entire state of Florida at this

         25        point with their coverage areas.  It is an interesting



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          1        idea.

          2             CHAIRMAN DOUGLASS:  Right not at the present time the

          3        state of Florida is funding the television that we are

          4        receiving.

          5             COMMMISSIONER JENNINGS:  Through the Florida Channel,

          6        absolutely.

          7             CHAIRMAN DOUGLASS:  That is exactly correct.  So we

          8        are giving the public an insight, those that are able to

          9        watch the cable channels, public access and so on and the

         10        public channels that carry it to what we are saying here

         11        today.  So that is to be commended.

         12             COMMMISSIONER JENNINGS:  I wonder if that comment

         13        about getting those crackers back came about the time that

         14        the he-coon walked at dawn.

         15             CHAIRMAN DOUGLASS:  Well, the he-coon did walk.

         16             COMMISSIONER JENNINGS:  During that debate, as I

         17        recall.

         18             CHAIRMAN DOUGLASS:  That's right.  The Governor and

         19        me and a few people from North Florida knew what he was

         20        talking about.

         21             COMMMISSIONER JENNINGS:  And some of us had not a

         22        clue.

         23             CHAIRMAN DOUGLASS:  Right.  And I'm not sure that I

         24        didn't have to go back and remember it.

         25             COMMMISSIONER JENNINGS:  Further questions?



                                                                          197

          1        Commissioner Corr.

          2             COMMISSIONER CORR:  Last time I sat down for the last

          3        time, but I think Commissioner Evans-Jones brought up a

          4        brilliant idea.  And, again, it is not something that has

          5        to be done in the Constitution, just like none of this has

          6        to be done in the Constitution.

          7             I just want to ask one more time, why can't we take

          8        five minutes and try to improve this?  Earlier on today we

          9        took five minutes for a couple of proposals to try to

         10        improve them.  I don't understand why we can't look at

         11        that for a few minutes.

         12             CHAIRMAN DOUGLASS:  You can look at it all you want

         13        to.  I think all of us that support this, at least that

         14        sponsored it, believe in its present form it should be

         15        passed.  And, you know, that's just the way we operate.

         16        We don't take a five-minute recess every time somebody is

         17        against something and wants to change it.  We just get the

         18        amendments and act on them, I believe.

         19             COMMISSIONER CORR:  I'm trying to look for a way to

         20        support it.

         21             CHAIRMAN DOUGLASS:  Well, you know, if you don't like

         22        it like it is, I can't convince you that it is the best

         23        thing going, nor can Commissioner Connor either.

         24             COMMMISSIONER JENNINGS:  Commissioner Corr, I'm sorry

         25        I didn't sense that a little bit earlier because we have



                                                                          198

          1        probably talked a good five minutes since then.  We

          2        probably could have done it in the meantime, if anybody

          3        would like to talk some more.

          4             COMMISSIONER CORR:  They ruled it out of order at

          5        this point.

          6             COMMISSIONER JENNINGS:  Commissioner Thompson.

          7             COMMISSIONER THOMPSON:  He has got time to make up an

          8        amendment, but I'm going to be against it if it is the way

          9        he has been talking, and I'm for the measure as it now is,

         10        but I'll be glad to give him some time.

         11             I think the idea that Commissioner Evans-Jones is

         12        raising is an excellent idea and that is if you opt into

         13        this system somehow there is required that you spend some

         14        of the money on some kind of a public debate.  I think it

         15        will take more than a few minutes to deliberate and to

         16        fashion that kind of an amendment because I don't know

         17        what you would do with the other people in the race that

         18        didn't have anything to do with that fund, and were not

         19        willing to take advantage of this opportunity.  So I think

         20        that's going to be a problem.

         21             I think also Commissioner Morsani's point is one that

         22        would muddy the water a little bit.  I'm altogether in

         23        favor of the measure as it is, but I don't want to say

         24        that -- I don't want to say, listen, I don't want to say

         25        that PAC money is dirty.



                                                                          199

          1             Goodness gracious, farmers get together out there and

          2        they can't come to Tallahassee in the spring, by the way,

          3        because they are working.  And so they have to get their

          4        money together and hire somebody to represent them.  So I

          5        don't think necessarily lobbyists are dirty either.  And

          6        then in order to contribute to campaigns, they may not

          7        have much in their pockets and may not even know how to do

          8        without being organized to some extent.

          9             So I think what Commissioner Connor has said is that

         10        is a different issue and ought to be taken up separately.

         11        And what you are saying is why don't you amend this to

         12        require that if you participate you can't take PAC money.

         13        I'm against that, you are for it.  I don't think we ought

         14        to get it bogged down in here.

         15             Let me back up just a minute as a proponent of this

         16        and say that I guess back in '86 I had, as Speaker of the

         17        House, I had two or three turkeys.  All Speakers have

         18        them.  All presiding officers --

         19             COMMMISSIONER JENNINGS:  Those are legislative

         20        issues, not two-legged birds.

         21             COMMISSIONER THOMPSON:  That's right.

         22             COMMMISSIONER JENNINGS:  Okay.

         23             COMMISSIONER THOMPSON:  They say that all presiding

         24        officers have them in both chambers.  I don't know about

         25        that.



                                                                          200

          1             COMMMISSIONER JENNINGS:  That was in the old days.

          2             COMMISSIONER THOMPSON:  That was in the old days,

          3        before we got religion.

          4             But before we got religion, Speakers and Presidents

          5        were supposed to have turkeys and so everybody kept

          6        telling me that.  So finally I tried to pick me out a few.

          7        Some of them got civic enters worked up and named after

          8        them and highways and all that kind of stuff.

          9             And so I decided that campaign reform would be one of

         10        mine, in addition to the small business and minority

         11        business administration commission.  And I think the other

         12        thing was a pretty huge undertaking.  I think we spent

         13        $80,000 over in Quincy to get a little branch campus going

         14        for TCC so that some of our unwed mothers who couldn't

         15        afford the transportation over here could get into college

         16        and start a curriculum that would help them in life.

         17             I think all of those things were pretty modest and I

         18        really think this is pretty modest.  I think the

         19        expenditure of 9 or $10 million in a $42 billion budget is

         20        relatively modest.  And I for one as a taxpayer don't mind

         21        some of mine being spent to get the word out and to get

         22        the right kind of candidate before us.

         23             And what I perceived at that time, and I was coming

         24        out of elected office and never intended to try to go

         25        back, but what I perceived is that especially in Florida



                                                                          201

          1        today, because it is so big, I mean this is a huge state.

          2        You know, I live, my district was the only one in the

          3        House of Representatives that bordered two neighboring

          4        states.  So I always kept up with some of our neighbors

          5        and I realized how small they really are.

          6             We talked about a unicameral Legislature and what the

          7        difference was in Nebraska and this huge state that every

          8        now and then just accommodates 150-, 200,000 new people in

          9        sometimes a matter of a few months.  I was in Colorado

         10        over the holidays and they had 70-something thousand new

         11        people last year.  And I said, Boy, that's a big deal;

         12        isn't it?  They are bursting at the seams out there.  We

         13        get about 300,000 a year in a slack year.

         14             And so what I'm saying is we have a very complex and

         15        expensive state to campaign in.  And the problem that

         16        occurs is people who are incumbents, and not necessarily

         17        incumbents for the office that they are seeking, but

         18        incumbents in the Legislature have a great advantage in

         19        going out there amongst the special interests and they are

         20        driven to do that because of the expense of the

         21        campaigning, they have to go out there and get that money.

         22             It is not dirty, it is not tainted, they are

         23        well-intentioned.  And let me tell you something, we have

         24        been lucky.  We have been lucky.  We are not going to be

         25        as lucky as we have been indefinitely.  We are going to



                                                                          202

          1        start having some problems because of the concerns of

          2        Mr. Corr, the concerns of Ms. Evans-Jones, the concerns of

          3        the Chairman, the concerns of Mr. Connor because of the

          4        way money is working its way into our system.

          5             The business community does not like it.  Let me tell

          6        you, I have been in the Legislature and I have been in the

          7        business community.  Nobody likes it.  But if everybody is

          8        doing it, you almost have to do it, if it is legal.

          9             So what I decided was that we would try to fashion,

         10        and this took our staff and the rest of us that were

         11        involved two years to work up.  And it is not perfect, as

         12        Mr. Langley has pointed out and others, it is not perfect

         13        at this point.  I think it can get better.  I think if

         14        there is a constitutional mandate to do something about

         15        it, it will get better.

         16             But I don't think, unless we do something like this,

         17        that it will.  What it does is it says, Okay, you go out

         18        and you become a creditable candidate.  You have got to

         19        raise a certain amount of money to trigger the threshold

         20        so that you will start getting some of this public money,

         21        but when you begin to do that, then you become a viable

         22        candidate.

         23             And, you know, nobody can point any more directly, no

         24        matter what party you are in, you have got to respect

         25        General Milligan.  You have got to respect how he got



                                                                          203

          1        there.  And it was because -- we are going to get better

          2        candidates, we are going to get better opportunities for

          3        candidates and we are going to get real people.

          4             You know, I have said this a time or two, but let me

          5        emphasize it.  Those of us that have served in the

          6        Legislature, in the judicial branch and other places, we

          7        are not trying to hog this show.  We want to listen to

          8        Mr. Morsani; it is very important to me to hear from

          9        Ms. Riley.  It is very important for me to hear from those

         10        of you who haven't been so educated in state government

         11        and the ways thereof as to what you think.  And your

         12        objectivity is very, very important to all of us.

         13             And many times you'll see us kind of sitting back and

         14        waiting and waiting and waiting.  And on more than one

         15        occasion I have seen you ask us what we think, and on more

         16        than one occasion we have asked you the same thing, how do

         17        you feel about this?

         18             It is very important I think to get candidates that

         19        don't just come from other political offices, especially

         20        state political offices.  That's what shakes up the

         21        system, that's what makes us all think, that's what makes

         22        us think in here, if you will think about it.

         23             Mr. Connor made the point yesterday that we are

         24        debating things that never got to the floor of either

         25        house of the Legislature and how good that is.  And I



                                                                          204

          1        think that has been good for us and it's good for the

          2        state and I hope the people are paying attention.

          3             And I think if we will do something like this where

          4        we really set in motion, for the long haul, campaign

          5        financing, requiring that candidate to carry the ball and

          6        to be a creditable candidate and to have support but at

          7        the same time kick in our public assistance, then the

          8        public will hear real debates and they will hear issues

          9        debated and talked about and discussed and positions taken

         10        that we haven't seen historically.

         11             And so for those reasons, I recommend this proposal

         12        to you.

         13             COMMMISSIONER JENNINGS:  Thank you, Commissioner

         14        Thompson.  Commissioner Brochin, and then we do have an

         15        amendment before us, or we will have.

         16             COMMISSIONER BROCHIN:  I'd like to speak in favor of

         17        the proposal.  Money in campaigns is a fact and it is

         18        actually not a bad fact, it is a fact.  And money is

         19        necessary to run campaigns, that's what allows candidates

         20        to get their messages out.

         21             Another fact is that the more money a candidate

         22        raises, the more likely he or she is to get elected.  And

         23        another fact is that when he or she gets elected,

         24        immediately thereafter they have to add up and see who

         25        gave them the money and pay them back somehow.



                                                                          205

          1             What public financing does is the third prong of

          2        that.  It doesn't take care of the first and it doesn't

          3        take care of the second, but it does begin to take care of

          4        the third prong.  And that means when the candidate is

          5        ultimately elected and he or she looks at the monies that

          6        they have received, they will look to see that a large

          7        portion of those monies came from the public and

          8        hopefully, and I think will be true, that candidate will

          9        then be beholden to the public because they are the ones

         10        that financed their campaign and put them in office.

         11             It allows people to act more freely and in the

         12        benefit of the interest of all the people.  I look at the

         13        8, 10, $12 million as an investment.  Because if you spend

         14        that kind of money for your candidates, when they get to

         15        office, I think it will be true that they will be better

         16        positioned to govern and govern more efficiently for the

         17        state in the public's interest, and therefore allow

         18        people -- that 10 or 11 will be recaptured ultimately when

         19        they are in office.

         20             Now all these intricacies and somewhat problematic

         21        issues, including, Commissioner Corr, your amendment,

         22        really stem from two things.  And one is the First

         23        Amendment to the United States Constitution, and second is

         24        a case in the United States Supreme Court called Buckley

         25        versus Villajo.



                                                                          206

          1             And what happens was when Watergate occurred there

          2        was a whole rash of efforts to have public financing put

          3        in place.  And the United States Supreme Court put certain

          4        rules and limitations upon what can be done because

          5        spending money, unlimited as it may be in campaigns, is a

          6        First Amendment freedom of speech and freedom of

          7        association.

          8             So the method that has been crafted through the long

          9        and torturous statutory history is compatible with the

         10        First Amendment and is compatible with Buckley versus

         11        Villajo.  It is not perfect and it does not eliminate

         12        special interests.

         13             But what it does begin to do is it begins to get

         14        candidates who will be beholden to the public once they

         15        are elected.  And that is a very critical aspect of this.

         16        And for that reason, I think it is a very good idea.  The

         17        only issue I struggled with is whether it belongs in the

         18        Constitution and I have come to conclude that indeed it

         19        does because it is too fundamental to us to allow a

         20        Legislature to erode it.  And currently the Legislature

         21        has attempted to erode it.  And it should not be.

         22             And the people I think are ready to say that we will

         23        spend the $10 million a year to ensure that our candidates

         24        listen to us once we are elected.  So I think it is a good

         25        idea and I think it deserves constitutional protection.



                                                                          207

          1             COMMMISSIONER JENNINGS:  Commissioner Corr, are you

          2        ready to take up your amendment?

          3             COMMISSIONER CORR:  Thank you, Madam Chair.

          4             COMMMISSIONER JENNINGS:  Madam Reading Clerk, read

          5        the amendment.

          6             READING CLERK:  On Page 1, Line 21, insert after

          7        "campaign," candidates who accept public campaign

          8        financing shall forbear accepting contributions from

          9        nonnatural persons, including Political Action Committees.

         10             COMMMISSIONER JENNINGS:  Commissioner Corr.

         11             COMMISSIONER CORR:  Thank you.

         12             COMMMISSIONER JENNINGS:  Commissioner Barkdull.

         13             COMMISSIONER BARKDULL:  I have an amendment to the

         14        amendment on the desk.

         15             COMMISSIONER JENNINGS:  Do we have an amendment to

         16        the amendment?

         17             COMMISSIONER BARKDULL:  Maybe it hasn't been printed

         18        yet.

         19             COMMMISSIONER JENNINGS:  Commissioner Thompson

         20        suggests that, Commissioner Corr, why don't you read and

         21        explain your amendment so everybody knows what it will,

         22        what the effect of Commissioner Barkdull's may be when he

         23        offers it.

         24             COMMISSIONER CORR:  Thank you.

         25             COMMMISSIONER JENNINGS:  And we will kill time for



                                                                          208

          1        the copy machine.

          2             COMMISSIONER CORR:  Great, thank you.  I think the

          3        commission understands now, we have spent a lot of time on

          4        this, what this amendment would do.  And what I'm trying

          5        to do is get at the line in the original proposal that

          6        says that we as a state in our Constitution think that we

          7        ought to have campaigns, and feel strongly enough about it

          8        to put it in the Constitution, that without the

          9        disproportionate influence of special interests; we all

         10        want that.

         11             So what this amendment would do is strengthen that by

         12        giving another requirement for the acceptance of public

         13        financing dollars, basically a criteria on those

         14        candidates to forbear accepting contributions from

         15        nonnatural persons or PACs.  So if you agree that you want

         16        the election cleaner, this amendment will do that.  It

         17        still provides the funding, the public funding that is

         18        needed, or based on the proponents of this original

         19        measure.

         20             But in response to the other point on this about the

         21        constitutionality of it, I'm not a lawyer, Commissioner

         22        Brochin, so I'm on thin ice here, but I would say that

         23        this does not come into the Buckley versus Villajo

         24        decision.  And, again, I'm on thin ice here, but I have

         25        heard Buckley v. Villajo in the Ethics and Elections



                                                                          209

          1        Committee 100 times in the last few months.

          2             But what this does is it asks the candidate to elect

          3        not to receive contributions from PACs or nonnatural

          4        persons.  So it is not restricting them from receiving

          5        them, it is asking them to elect to do that in order to

          6        qualify for public financing.  So I don't see how that

          7        would fly in the face of Buckley v. Villajo or the United

          8        States Constitution.

          9             COMMMISSIONER JENNINGS:  Commissioner Barkdull, we

         10        have the amendment to the amendment on the desk.

         11             COMMISSIONER BARKDULL:  Yes, ma'am.

         12             COMMISSIONER JENNINGS:  Let's read the amendment to

         13        the amendment.

         14             READING CLERK:  On Page 1, Line 20, delete "including

         15        Political Action Committees."

         16             COMMMISSIONER JENNINGS:  Commissioner Barkdull.

         17             COMMISSIONER BARKDULL:  It speaks for itself.  I

         18        don't think the reference to Political Action Committees

         19        should be in the Constitution.

         20             COMMMISSIONER JENNINGS:  So the effect of your

         21        amendment would be, should it be adopted, that

         22        Commissioner Corr's amendment would merely say that a

         23        person who takes public financing could not accept any

         24        contributions from other than a person.

         25             COMMISSIONER BARKDULL:  Natural person.



                                                                          210

          1             COMMMISSIONER JENNINGS:  So a live person.

          2             COMMISSIONER BARKDULL:  Correct, we hope.

          3             COMMMISSIONER JENNINGS:  We don't do that in Florida,

          4        except maybe in South Florida.  So consequently a

          5        corporation could not give a contribution, a labor union,

          6        a Political Action Committee, just you or I.  Okay,

          7        Commissioner Corr to speak on the amendment.

          8             COMMISSIONER CORR:  Clarifying question, Commissioner

          9        Barkdull.  Is it common opinion that PACs are not

         10        nonnatural persons?

         11             COMMISSIONER BARKDULL:  They are certainly not

         12        natural persons.

         13             COMMISSIONER CORR:  Because somewhere in my limited

         14        memory I recall some argument that PACs are a pack of

         15        nonnatural persons so therefore -- is that, I mean, I'm

         16        sorry, natural persons so --

         17             COMMISSIONER BARKDULL:  I just think the language

         18        doesn't belong in there, in the Constitution because if

         19        you exclude PACs, they will come with a different kind of

         20        name.  And what you are attempting to do is to not have

         21        contributions from persons other than natural persons.

         22             COMMISSIONER CORR:  Other than individuals, correct.

         23             COMMMISSIONER JENNINGS:  For purposes of information,

         24        are committees of continuous existence considered

         25        Political Action Committees?







                                                                          211

          1             COMMISSIONER BARKDULL:  I don't know what's

          2        considered a Political Action Committee.  There are a lot

          3        of different things that may come under that umbrella.

          4             COMMISSIONER JENNINGS:  Because we have a number that

          5        are organized as a committee of continuous existence.

          6        Commissioner Brochin, you are sort of nodding your head

          7        and you seem to be our resident expert.

          8             COMMISSIONER BROCHIN:  I don't know about that, but

          9        that's the definition in the statute is committees of --

         10             COMMMISSIONER JENNINGS:  Continuous existence, not

         11        necessarily Political Action --

         12             COMMISSIONER BROCHIN:  Right, that's a subset.

         13             COMMMISSIONER JENNINGS:  So that was the technical

         14        error?  Oh, we may have another technical error.  Why

         15        don't you-all just talk awhile, that's what we do.

         16             COMMISSIONER EVANS-JONES:  Let me kill a little time

         17        here.  Commissioner Barkdull, have you ever known of

         18        Political Action Committees who have really not used the

         19        Political Action Committee money, but would go to various

         20        individuals within that organization and say, You give me

         21        money and you give me money and you give me money,

         22        personally, and it is legal that way?  But has that not

         23        been done before or many times?

         24             COMMISSIONER BARKDULL:  Commissioner Evans-Jones, if

         25        you tell me that, I would have to believe it.  But I've



                                                                          212

          1        been in the judiciary and they are out of politics.

          2             COMMISSIONER EVANS-JONES:  Oh, of course.  I forgot,

          3        Commissioner.  But I do think that there are always ways

          4        to get around these kinds of things.  And some people are

          5        going to do it anyway, whether it is called a Political

          6        Action Committee or whether they go and get these various

          7        people to give individual contributions.

          8             And I guess that's why I still feel more comfortable

          9        spending money where all candidates could benefit, you

         10        know, perhaps on television, something like that, that

         11        seems a logical way for all candidates to be treated

         12        fairly.

         13             COMMMISSIONER JENNINGS:  Commissioner Mills.

         14             COMMISSIONER MILLS:  Madam Chairman, again, I think

         15        approving the amendment to the amendment doesn't really

         16        affect Commissioner Corr's purpose very much.  So at the

         17        appropriate time I would like to be recognized to speak

         18        against Commissioner Corr's amendment.  I think --

         19             COMMMISSIONER JENNINGS:  Let's get us in the right

         20        posture.  Further discussion on the amendment to the

         21        amendment?  Then seeing none, do you want to try this by

         22        voice vote?  Commissioner Barkdull, do we allow voice

         23        votes in our rules?  Okay, let's try it by voice vote and

         24        see if we can do this.

         25             All those in favor of Commissioner Barkdull's



                                                                          213

          1        amendment to the amendment say aye; opposed?

          2             (Verbal vote taken.)

          3             COMMMISSIONER JENNINGS:  You are as bad as the

          4        Legislature.  Based on what I heard, which was about two

          5        to one, the amendment to the amendment is adopted.

          6             Now we are on the amendment as amended.  Commissioner

          7        Mills, you are recognized to speak in opposition.

          8             COMMISSIONER MILLS:  Madam Chairman, I basically

          9        support this as a potential concept.  Campaign financing,

         10        I believe, is such a good idea at this time and so needed

         11        for these purposes, I have no question in my mind but that

         12        the introduction of this amendment will reduce its use,

         13        substantially.

         14             Because of the potential complexity, because of the

         15        very questions you are asking, could a PAC provide in-kind

         16        contributions?  Would contributions from PAC members

         17        violate this?  There is a degree of complexity that this

         18        adds that I would find would probably prevent some people

         19        who would otherwise seek public funding from doing it.

         20             Commissioner Connor voluntarily did it, I suppose

         21        others would do it.  I don't know what General Milligan

         22        did or others.  I think that the concept though is people

         23        can run for office who are not millionaires and who are

         24        not beholden to special interests for their entire

         25        existence.  And it is such a good concept to me.



                                                                          214

          1             And Commissioner Thompson who was really a pioneer on

          2        this, I was going to comment, Commissioner Thompson as a

          3        Speaker, if you heard his three turkeys, he was a very

          4        inexpensive Speaker.

          5             COMMMISSIONER JENNINGS:  That means he was cheap?

          6             COMMISSIONER MILLS:  Oh, he has always been cheap

          7        anyway, but he was inexpensive as well.

          8             (Laughter.)

          9             COMMISSIONER MILLS:  It seems to me that we ought to

         10        proceed with the proposal as proposed without this

         11        well-intentioned but probably good idea, additional

         12        provision which I believe would reduce its utilization.

         13             And Florida being, as we are, complex, big, and

         14        occasionally willing to step out front and do something

         15        like this, we need this to be used.  We need the number of

         16        campaigns that we can point to successfully and we need

         17        people to have used this financing process to get elected.

         18        And my concern is, unless someone could dispel that, that

         19        by adding this provision, it makes using public financing

         20        cumbersome in the early phases of utilization of public

         21        finance for candidates.

         22             And I think we accomplish our purpose with the base

         23        provision.  The base provision says you can only match

         24        that money, and those people involved in politics would

         25        realize what that means.  The money would be sought from



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          1        private individuals.  And as I understand it, that's how

          2        it works now.  We have to have private individuals to get

          3        that matching money.

          4             So the good money then is individuals.  And the bad

          5        money, which doesn't count, is PACs.  That's good.  I

          6        mean, that's a good result.  But if you totally exclude, I

          7        fear that you are going to reduce the number of people who

          8        will take advantage of this.  And unless we have people

          9        taking advantage of this, then the whole concept may die

         10        on the vine.

         11             So I would encourage you for that reason to vote

         12        against I think a well-intentioned amendment, one -- a

         13        piece of policy which may happen and I certainly would

         14        hope people voluntarily would do what Commissioner Connor

         15        did.

         16             COMMMISSIONER JENNINGS:  Thank you, Commissioner

         17        Mills.  Further on the amendment before I recognize

         18        Commissioner Corr to close?  Commissioner Corr.

         19             And, Madam Reading Clerk or Secretary, do we have a

         20        technical change to it or did we just scratch it out and

         21        make it right?

         22             SECRETARY BLANTON:  Our technical problem was that it

         23        was to the wrong line so we got it.

         24             COMMISSIONER CORR:  Will Commissioner Connor yield to

         25        a question and then I will close briefly?



                                                                          216

          1             COMMMISSIONER JENNINGS:  I'm sure he will.

          2             COMMISSIONER CORR:  Commissioner Connor, you did what

          3        the amendment is intending to do, you elected to do this

          4        in 1994, which I think was a tremendous thing.  Was that

          5        complex?

          6             COMMISSIONER CONNOR:  No.

          7             COMMISSIONER CORR:  Was there a lot of complexity

          8        associated with that?

          9             COMMISSIONER CONNOR:  No, it was a voluntary

         10        decision, which within my limited sphere was

         11        well-received, as far as that goes.

         12             COMMISSIONER CORR:  Okay.  I would say there is not a

         13        whole lot of complexity associated with this, as

         14        Commissioner Mills suggests.  I understand the point, but

         15        I just don't think this is that complicated.

         16             It is as simple as this:  What we are doing as

         17        taxpayers is allowing our good, hard-earned tax money to

         18        be used to finance elections, potentially to a candidate

         19        that we don't even support.  And in a very small measure

         20        for allowing the candidate to accept that public

         21        financing, we are asking to, quote, what we are reading

         22        here in the current proposal, to do that -- to run his

         23        election without the disproportionate influence of special

         24        interests.

         25             So I think this isn't a complex issue.  It is as



                                                                          217

          1        simple as this, if you believe that you want campaigns run

          2        without the disproportionate influence of special

          3        interests, and you agree that this public financing will

          4        do this, then you want to vote yes on this amendment.  If

          5        you would like to keep things the way they are, have

          6        disproportionate influence of special interests, including

          7        public financing of campaigns, then vote no for the

          8        amendment.  But I think you'll want to vote yes.

          9             COMMMISSIONER JENNINGS:  On the amendment as amended,

         10        all those in favor say aye; opposed?

         11             (Verbal vote taken.)

         12             COMMMISSIONER JENNINGS:  The amendment is not

         13        adopted.

         14             (Off-the-record comment.)

         15             COMMISSIONER JENNINGS:  Sure, open the machine and

         16        indicate your vote.  And the Chairman reminds me the

         17        Chairman is not supposed to vote.  You get to vote, but I

         18        don't get to, unless it is a tie.

         19             Oh, what a common sight.  They open the doors and

         20        Commissioner Crenshaw is just charging down the rotunda.

         21             (Laughter.)

         22             COMMMISSIONER JENNINGS:  This is on the amendment as

         23        amended.  Commissioner Connor, are you ready to -- well it

         24        wasn't helping.  I was watching and it wasn't helping.  I

         25        thought maybe it was helping.



                                                                          218

          1             Lock the machine and announce the vote.

          2             READING CLERK:  Eleven yeas, 14 nays, Madam Chairman.

          3             COMMISSIONER JENNINGS:  And so the amendment fails.

          4        I have a great ear, lots of practice.

          5             We're on the proposal, the committee substitute for

          6        Proposal No. 16 as offered by Commissioner Douglass.

          7        Commissioner Douglass, anything further?

          8             CHAIRMAN DOUGLASS:  No, I think almost everything has

          9        been said.  I would say that this is an important step for

         10        us to take in assuring the people that we want to improve

         11        our elective process and the participation of citizens in

         12        elections.

         13             And I recognize, as we all do, that there is no

         14        perfect solution.  This is a start.  And I do believe that

         15        once this becomes a part of the Constitution that you will

         16        find the Legislature will strengthen it and probably

         17        expand it even to other elective areas.  But you can't

         18        take it all at once.  And this will be a tremendous

         19        improvement in our basic document, which I believe will

         20        receive widespread support.  And I urge you to vote for

         21        it.

         22             COMMISSIONER JENNINGS:  Commissioner Douglass moves

         23        adoption of committee substitute for Proposal No. 16.

         24        Open the machine and indicate your vote.

         25             (Vote taken and recorded electronically.)



                                                                          219

          1             COMMISSIONER JENNINGS:  Has everyone voted?  Okay.

          2        Lock the machine and announce the vote.

          3             READING CLERK:  Twenty yeas, 6 nays, Madam Chairman.

          4             COMMISSIONER JENNINGS:  The proposal is adopted.

          5             Commissioner Douglass, are you ready to come back?

          6             (Chairman Douglass resumes the chair.)

          7             CHAIRMAN DOUGLASS:  I did that so she wouldn't have

          8        to vote.  All right.  The next item on the special order,

          9        if I can find it -- did we take up Proposal No. 168,

         10        Commissioner Corr?  Did we TP it until later in this

         11        meeting?

         12             (Off-the-record comment.)

         13             CHAIRMAN DOUGLASS:  You're ready to go on it?  Okay,

         14        then we will hear Proposal No. 168 by Commissioner Corr,

         15        which was approved by the committee on the executive and

         16        consideration was deferred.  So we will hear you on it

         17        after he reads it, or she reads it -- excuse me, she reads

         18        it.

         19             READING CLERK:  Proposal 168, a proposal to revise

         20        Article IV, Section 6, Florida Constitution; providing

         21        that an entity purpose purportedly within an executive

         22        department which is not subject to the direct supervision

         23        of the agency head is a department.

         24             COMMISSIONER CORR:  Thank you.  This is the proposal

         25        we heard this morning, reinforcing the 25 department limit



                                                                          220

          1        in the executive branch.  Commissioner Nabors has the

          2        proposal and I would like him to handle that at this time.

          3        He is prepared to do that.

          4             CHAIRMAN DOUGLASS:  There was an amendment adopted

          5        earlier to this, I believe, Commissioner Corr.

          6             COMMISSIONER CORR:  There was an amendment adopted?

          7             CHAIRMAN DOUGLASS:  Yes, Commission Henderson had an

          8        amendment which had a change in it to say the Governor and

          9        Cabinet, I believe; isn't that correct?

         10             COMMISSIONER HENDERSON:  That's been adopted.

         11             CHAIRMAN DOUGLASS:  That's correct.  That's what I

         12        was saying, that --

         13             COMMISSIONER HENDERSON:  I'm sorry.

         14             CHAIRMAN DOUGLASS:  -- that that's been adopted and

         15        is part of the proposal at this time.  I just wanted to

         16        make that clear.  You may proceed.

         17             COMMISSIONER NABORS:  Mr. Chairman and commission

         18        members, this amendment deals with the technical matter of

         19        scheduling on the issue of departments that may be in

         20        violation of this and what happens to them during the

         21        process.

         22             It basically has two languages.  The language that's

         23        on the first page from Lines 15 through 19 recognizes the

         24        Housing Finance Agency and makes a decision that the

         25        factor of direct supervision would not affect the status



                                                                          221

          1        of that entity since it is constitutionally authorized to

          2        issue bonds prior to July the 1st, 1999.

          3             The scheduling provisions on the second page

          4        basically preserve the existing status of those who would

          5        not be in compliance until the Legislature has an

          6        opportunity to act on July the 1st, 1999.

          7             CHAIRMAN DOUGLASS:  Anyone want to be heard?  Is

          8        everybody listening to this or are we --

          9             (Off-the-record comment.)

         10             CHAIRMAN DOUGLASS:  The amendment that was adopted

         11        was number one -- has been adopted.  The amendment he's

         12        moving would be number two.  Since we don't have it, we're

         13        a little bit at a loss.  Everybody has got it but the

         14        secretary.

         15             (Off-the-record comment.)

         16             CHAIRMAN DOUGLASS:  It may be, but they tell me it's

         17        not.  It's beginning to seem like 5:00; isn't it,

         18        Commissioner Henderson?  Do you want an amendment to the

         19        amendment to the amendment?

         20             COMMISSIONER HENDERSON:  No, sir.

         21             CHAIRMAN DOUGLASS:  We can get into that again.  We

         22        have Commissioner Nabors over here, you over there and me

         23        here.

         24             COMMISSIONER HENDERSON:  This is deja vu all over

         25        again.



                                                                          222

          1             CHAIRMAN DOUGLASS:  Absolutely.

          2             COMMISSIONER HENDERSON:  That's right.

          3             CHAIRMAN DOUGLASS:  Let's keep our sense of humor.

          4             COMMISSIONER HENDERSON:  I've got mine.

          5             CHAIRMAN DOUGLASS:  I'd like to have the pending

          6        amendment that's being offered by Commissioner Nabors

          7        read.  Actually it's moved by Commissioners Corr,

          8        Henderson and Nabors move the following amendment.  I'm

          9        going to let you and Commissioner Nabors sit next to each

         10        other.  (Pause.)

         11             We're waiting for them to decide if this amendment

         12        they handed us is the one they want us to consider.

         13        (Pause.)  Are we ready to read the amendment by

         14        Commissioner Nabors?  Please read it.

         15             READING CLERK:  By Commissioner Nabors, on Page 1,

         16        Line 26, through Page 2, Line 4, delete those lines and

         17        insert lengthy amendment.

         18             COMMISSIONER NABORS:  Mr. Chairman, everybody has the

         19        amendment.  It's a two-page amendment which has some new

         20        language on the first page on Lines 15 through 19 and then

         21        a new Section 23 on the second page.  It's really an

         22        amendment by Commissioner Corr, Commissioner Henderson and

         23        myself.

         24             And it simply does, in the first page, is recognize

         25        the existence of the housing -- Florida Housing Finance



                                                                          223

          1        Corporation and provides that even though it would fail

          2        the test, in the sense there is no direct supervision,

          3        that it would remain its current status because it has the

          4        constitutional authority to issue bonds prior to July 1st,

          5        1999, for all the reasons we talked about earlier.

          6             It then adds Section 23 on the scheduling for all the

          7        others that don't have this peculiar characteristic.  It

          8        places them in a position for reenactment by the

          9        Legislature or expiration on July the 1st, 1999.

         10             CHAIRMAN DOUGLASS:  Anybody want to speak on the

         11        amendment?  Ready to vote?  On the amendment, all in favor

         12        of the amendment say aye; opposed, no.

         13             (Verbal vote taken.)

         14             CHAIRMAN DOUGLASS:  The amendment is adopted.  Now

         15        we're on the proposal as amended.  Who wants to be

         16        recognized on it?  Commissioner Corr, your proposal.

         17             COMMISSIONER CORR:  I can go ahead and close if there

         18        are no questions, if we're ready.  Is that where we are?

         19             CHAIRMAN DOUGLASS:  You have now adopted the

         20        amendment, you are on the proposal.  Do you want to

         21        explain the proposal again and why we should do it?

         22             COMMISSIONER CORR:  Okay.  Thank you.  Again, this

         23        proposal would reinforce the 25 department limit in the

         24        executive branch.  What we've done now with this amendment

         25        is ensure that among -- that when this is adopted by the



                                                                          224

          1        electorate that any of the departments that may fall under

          2        this new more strict requirement don't all of a sudden

          3        have to go out of business the next day.  They are able to

          4        continue until the Legislature takes action and places

          5        where they see fit.

          6             And that makes the most sense in respect to the

          7        Housing Finance Authority, since it may affect the bond

          8        market.  Commissioner Nabors talked about that.

          9             And so I think that we're ready to vote.  Sorry, I

         10        wasn't following.  So I guess that's where we are.  Let's

         11        just vote on it.

         12             CHAIRMAN DOUGLASS:  Somebody else may want to speak

         13        on this.  Does anybody want to speak on this?  If not, are

         14        you prepared to vote?  Unlock the machine.  Does everybody

         15        know what this is?

         16             (Off-the-record comment.)

         17             COMMISSIONER LANGLEY:  I understand that and it's

         18        been very eloquent and long-bearing, but how are we going

         19        to explain it to Joe Lunch Bucket when it gets on the

         20        ballot?

         21             CHAIRMAN DOUGLASS:  Gosh, I wish you had gotten up

         22        before we started voting.

         23             Has everybody voted that wants to vote?  I wonder if

         24        we've got a quorum.

         25             SECRETARY BLANTON:  We don't have a quorum.



                                                                          225

          1             CHAIRMAN DOUGLASS:  We don't have a quorum.  Lock the

          2        machine and clear the machine.  Clear the machine and

          3        we'll take a quorum call.

          4             SECRETARY BLANTON:  Quorum call, quorum call.  All

          5        commissioners indicate your presence.  All commissioners

          6        indicate your presence.

          7             (Quorum taken and recorded electronically.)

          8             SECRETARY BLANTON:  Quorum present, Mr. Chairman.

          9             CHAIRMAN DOUGLASS:  Before we go forward, somebody

         10        obviously -- Commissioner Langley, you had questions about

         11        this and I think we shouldn't vote on this until people

         12        know what we're voting on.  Not only you, Commissioner

         13        Langley, there were quite a few other people not even in

         14        the chamber.

         15             So I would like to hear somebody on this explain,

         16        one, what it is, if you're for it; and if you're against

         17        it, that also.

         18             Did you rise to address the proposal as amended,

         19        Commissioner Riley?

         20             COMMISSIONER RILEY:  I would like to ask a basic

         21        question of the maker of the proposal.

         22             CHAIRMAN DOUGLASS:  All right.  He yields for a

         23        question.

         24             COMMISSIONER RILEY:  Since Josephina Lunch Bucket

         25        voted against it because I'm not sure what the question is



                                                                          226

          1        here.  My question is fairly basic.  Is this going to make

          2        it better?

          3             CHAIRMAN DOUGLASS:  Commissioner Henderson probably

          4        can explain it to you.

          5             COMMISSIONER RILEY:  Well I'll ask anybody who can

          6        answer the question.  I understand that it's necessary in

          7        the Constitution because the departments are limited --

          8        the agencies are limited within the Constitution,

          9        departments.  Is this expanding government?  Is it making

         10        it better?  Is it necessary?  Is it going to do nothing

         11        more than put different names on people's doors?  And

         12        those are my questions.

         13             CHAIRMAN DOUGLASS:  Those are very good questions.  I

         14        see Commissioner Langley has some answers for you on

         15        those.  Go ahead, Commissioner Corr.

         16             COMMISSIONER CORR:  Thank you, Commissioner Lunch

         17        Bucket.  Here's what I would do if I was trying to explain

         18        it to voters, which probably wouldn't work, based on the

         19        recent votings when I try to promote these things.

         20             What I would do is I would claim that this is a good

         21        government proposal.  In 1968, the CRC passed an

         22        amendment, a proposal that was adopted by electors because

         23        the executive branch had grown to about 170 departments.

         24        So the amendment was adopted by electors to reduce it to

         25        25.  A big reorganization took place and at that point the



                                                                          227

          1        executive branch was reorganized to be 25 departments.

          2             Since that time, over the last 30 years, the

          3        department has grown again.  And basically what the

          4        department does is rather than just use the word

          5        "department" to classify any of those entities, it may be

          6        called a commission or an agency or whatnot.  And so we

          7        have kind of gotten around the original intent to keep the

          8        executive branch intact.

          9             So what I would do if I was touting this to the

         10        electorate is this is just a good government proposal.

         11        It's keeping size of government in check, like it was

         12        originally sold 30 years ago.  It passed 30 years ago so I

         13        think it could pass again today.

         14             CHAIRMAN DOUGLASS:  Commissioner Mills?

         15             COMMISSIONER MILLS:  Will the gentleman yield for a

         16        question?

         17             CHAIRMAN DOUGLASS:  He yields.

         18             COMMISSIONER MILLS:  My understanding of this is it

         19        could be characterized as streamlining.

         20             COMMISSIONER CORR:  Right.

         21             COMMISSIONER MILLS:  And it actually makes this

         22        provision do what it purports to do, because by removing

         23        "unless otherwise provided herein" you say, if you read

         24        this provision, it means what it says.  And if you want to

         25        expand beyond that, you can.  It actually puts teeth in



                                                                          228

          1        the provision and it limits and streamlines government

          2        would be the way I would describe it.

          3             COMMISSIONER CORR:  Perfect.  I think you're helping

          4        me.

          5             CHAIRMAN DOUGLASS:  Now Commissioner Langley.

          6             COMMISSIONER LANGLEY:  Just a clarification.  That

          7        language is not removed.

          8             (Off-the-record comment.)

          9             COMMISSIONER LANGLEY:  It's replaced.

         10             CHAIRMAN DOUGLASS:  Commissioner Nabors?

         11             COMMISSIONER NABORS:  Let me also take a crack at

         12        this from a technical standpoint.  The current

         13        Constitution limits the number of executive departments to

         14        25.  There is a court case which is talked about in the

         15        notes that basically dealt with the Agency for Health Care

         16        Administration, okay.  That basically said a new

         17        department was not created because it was placed in an

         18        existing department even though there was no direct

         19        supervision by that department head, okay.

         20             So what this is intended to do is to overcome that

         21        case to say that even a placement within an existing

         22        department, if there is no direct supervision, constitutes

         23        a department.  So you couldn't subvert the 25 department

         24        limitation.

         25             Now the reason for the -- the other amendments had to



                                                                          229

          1        do with we didn't want to inadvertently create any concern

          2        about the Florida Housing Finance Corporation because it's

          3        a unique entity, it's an independent agency.

          4             CHAIRMAN DOUGLASS:  Commissioner Mills.

          5             COMMISSIONER MILLS:  Commissioner Nabors, so continue

          6        to help me with this.  It then keeps agencies from falsely

          7        creating what are in fact agencies -- I mean, in other

          8        words is that the purpose --

          9             COMMISSIONER NABORS:  It limits the power of the

         10        Legislature to subvert the 25 amendment by creating an

         11        entity, placing it in a department with no direct

         12        supervisory control of the head of that department.

         13             COMMISSIONER MILLS:  In other words, it is possible

         14        to subvert the will of this provision of the Constitution

         15        without this language.

         16             CHAIRMAN DOUGLASS:  Commissioner Sundberg, maybe you

         17        can help me and others out here to tell us what we're

         18        talking about.

         19             COMMISSIONER SUNDBERG:  Well, Mr. Chairman, you of

         20        all people should know what we're talking about here.  We

         21        were on the opposite sides of it, and he won.  But we may

         22        have the last say here.

         23             CHAIRMAN DOUGLASS:  That's true.  I have already won

         24        so it's okay now.

         25             COMMISSIONER SUNDBERG:  You have to go back to the



                                                                          230

          1        government reorganization back when Dick Pedigrew was

          2        active in this Legislature.  And it reorganized state

          3        government and said there will not be more than 25

          4        executive departments.  There has been created a number of

          5        entities that have ostensibly been placed within a

          6        department but called an agency, commission, what have

          7        you.

          8             For example, and this affects some significant

          9        agencies.  The Division of Administrative Hearings, which

         10        conducts all hearings, you know, when designated within

         11        state government, is an agency within -- I have forgotten

         12        what department it's in.  But it is expressly, it is

         13        expressly exempted from any control by the head of that

         14        department.  So that the Director of the Division of

         15        Administrative Hearings answers only to the chief

         16        executive.

         17             The Agency for Health Care Administration was lodged

         18        as an agency within the Department of Professional

         19        Regulation.  But the director was expressly exempted from

         20        any supervision or control or budgetary provisions.  So

         21        somebody suggested, Hey, this looks just like a

         22        department.  And if it is a department, a lot of things

         23        follow from that.  For example, the head of it has to be

         24        confirmed by the Senate.

         25             And now you really know what we're talking about.



                                                                          231

          1        Because the Agency for Health Care Administration was the

          2        agency charged with administering the Medicaid Act, which

          3        had some notoriety in connection with the tobacco

          4        litigation.  In any event, this issue was raised in the

          5        Supreme Court, and with all due respect to the Supreme

          6        Court --

          7             CHAIRMAN DOUGLASS:  That's not a very good respect.

          8             COMMISSIONER SUNDBERG:  It's the most I can muster,

          9        on this issue, please, Mr. Chief Justice.

         10             (Off-the-record comment.)

         11             (Laughter.)

         12             COMMISSIONER SUNDBERG:  That's called biting the hand

         13        that feeds you.

         14             CHAIRMAN DOUGLASS:  Commissioner Sundberg, you don't

         15        have to explain all your court losses to us.

         16             COMMISSIONER SUNDBERG:  We don't have time for that.

         17             Therein lies the problem, I suggest to you, that

         18        seeks, that is sought to be addressed here.  And this is

         19        not my proposal.

         20             The Supreme Court agreed with those other forces and

         21        said, no, that isn't really unconstitutional, it's not

         22        really a department.  But I suggest that it did not give

         23        us any principal basis upon which to determine what was a

         24        department and what wasn't a department.

         25             And, hence, under the state of the law as it now



                                                                          232

          1        exists, the Legislature pretty much has free hands to

          2        create as many of these entities -- giving them -- you

          3        know, it's the old duck thing; walks like, quacks like,

          4        that sounds like a department.  Now, in any event, that's

          5        what this seeks to address.

          6             CHAIRMAN DOUGLASS:  Commissioner Sundberg.

          7             COMMISSIONER SUNDBERG:  Yes.

          8             CHAIRMAN DOUGLASS:  I don't want to intervene too

          9        much, but my view of that opinion is the court did not

         10        pass on the ultimate question; they held it was not

         11        material to the determination in that case.  And it was a

         12        4-3 decision also.  And, you know, I was on the winning

         13        side and we -- you know, we count our chips and all that.

         14        And you're on the losing side and you're crying, deal.

         15        It's turned to deal, right?  And that's what you're

         16        telling everybody.  You want to correct it even though

         17        they don't deal with it.

         18             COMMISSIONER SUNDBERG:  This really is not my

         19        proposal, but I was asked to try to explain it.  So I

         20        thought I would give you a little anecdotal information,

         21        too.

         22             CHAIRMAN DOUGLASS:  Okay.  Let's deal.  Commissioner

         23        Langley.

         24             COMMISSIONER LANGLEY:  I'm really torn because I

         25        really want to see Commissioner Corr pass something today.



                                                                          233

          1             CHAIRMAN DOUGLASS:  We could always do it and then do

          2        it on reconsideration.

          3             COMMISSIONER LANGLEY:  What concerns me here in being

          4        a technocrat is "any entity."  Now somebody who knows the

          5        administrative department, they have, for instance, in the

          6        Department of Agriculture have such things as the

          7        Pesticide Advisory Council.  It doesn't answer to the

          8        agriculture commissioner, it only reports to the

          9        Legislature.  Now, question, is that an entity?  I don't

         10        know.

         11             Mr. Corr, that's putting you on the spot, but I just

         12        wonder really what we're creating here, if anybody knows

         13        the answer to that.  We have all kind of commissions that

         14        are appointed within these departments that recommend back

         15        to the Legislature what the Legislature should do on

         16        things.  I hate to muddy the water and I voted for it the

         17        first round, Commissioner Corr, and I'll vote for it again

         18        if you want me to.  I just would like to know what we're

         19        doing.

         20             CHAIRMAN DOUGLASS:  I sense overwhelming support.

         21        Commissioner Sundberg.

         22             COMMISSIONER SUNDBERG:  I think -- and that is part

         23        of the problem, Commissioner Langley.  But I think all of

         24        this is related to exercising an executive function of

         25        state government.  I'm not sure of all of these







                                                                          234

          1        commissions and whether or not they do.  But that question

          2        remains unanswered.

          3             Now, I'm not sure this changes that.  But the

          4        Legislature will have to deal with it and it simply says

          5        to the Legislature, if it's going to exercise an executive

          6        function of government, it must be truly answerable to the

          7        head of one of the 25 departments.  And, for example, I

          8        don't know how the Legislature would deal with the

          9        situation they have presently.

         10             I know there are at least three, you know, three

         11        entities that clearly I think would be declared to be

         12        departments under this language; DOAH, AHCA, and I think

         13        it's the retirement board, is that it?  That

         14        immediately -- and whether the Legislature would

         15        necessarily say, well, they are -- they go by the boards

         16        or they now have to start answering or they may pick and

         17        choose some others if they say, We don't want them to be

         18        departments.  This doesn't answer all the questions.

         19             CHAIRMAN DOUGLASS:  All right.  Has anybody got

         20        anything further on this?  All right.  Prepare to vote.

         21        Unlock the machine.

         22             (Vote taken and recorded electronically.)

         23             (Laughter.)

         24             CHAIRMAN DOUGLASS:  Commissioners Riley and Smith

         25        move to reconsider.



                                                                          235

          1             COMMISSIONER RILEY:  No, just one comment to

          2        Commissioner Nabors, since he wrote this amendment.  I'd

          3        sure like a hand in some of the writing of these

          4        amendments.  As a layperson and a nonlawyer, I find some

          5        of the words a little confusing, to say the least.

          6             CHAIRMAN DOUGLASS:  Lock it and announce the vote.

          7             READING CLERK:  Twenty-five yeas, zero nays,

          8        Mr. Chairman.

          9             CHAIRMAN DOUGLASS:  All right.  Proposal 76 by

         10        Commissioner Sundberg.  Would you read it, please?

         11             READING CLERK:  Proposal 76, a proposal to create

         12        Article VI, Section 7, Florida Constitution; prohibiting a

         13        business entity or labor organization from making any

         14        contribution for the purpose of influencing an election

         15        held to fill a public office in the state; prohibiting a

         16        candidate or other person from knowingly effecting any

         17        such unlawful contribution; prohibiting an officer or

         18        director of a business entity or labor organization from

         19        consenting to any such unlawful contribution; providing

         20        that the establishment of an independent committee does

         21        not constitute an unlawful activity; specifying that the

         22        provision of certain indirect support services does not

         23        constitute an unlawful entity.

         24             CHAIRMAN DOUGLASS:  All right.  Commissioner

         25        Sundberg.



                                                                          236

          1             COMMISSIONER SUNDBERG:  Mr. Chairman, briefly, this

          2        provides that it will be unlawful for corporations or

          3        labor organizations to contribute in campaigns for

          4        election to public office.  It doesn't affect issue

          5        campaigns.  It does not affect PACs.  It does not affect

          6        PACs because in my judgment the United States Supreme

          7        Court has held that it is unconstitutional to prohibit

          8        organizations made up of individuals from making

          9        contributions.

         10             But by the same token, the Supreme Court has found

         11        constitutional legislation that prohibits corporations and

         12        labor organizations from making contributions to political

         13        campaigns for political office.  In fact, 15 states in

         14        this country today have such legislation.

         15             Commissioner Thompson tells us that everybody is

         16        doing it, when he talks about businesses making political

         17        contributions.  He says everybody is doing it so

         18        businesses have to do it.  So long as it is illegal, they

         19        are all going to do it.  Commissioner Connor tells us that

         20        political power reposes in the special interests.

         21             Hence, I say to you, for all the reasons that have

         22        been expressed by Chairman, sometime-Commissioner

         23        Douglass, by Commissioner Corr, by Commissioner Thompson,

         24        by Commissioner Connor and all the others who spoke about

         25        the evils, and we talked about it as dirty money -- and I



                                                                          237

          1        frankly do believe, I do believe, to paraphrase, that in

          2        the political landscape, money does corrupt.  And lots of

          3        money corrupts absolutely.

          4             This is one way and it's, you know, it's not a very

          5        ambitious proposal.  It's short and to the point.  And for

          6        all the reasons that have been expressed as to why we want

          7        individuals to feel like they have a stake in this

          8        government in the state of Florida, this would say only

          9        individuals and political organizations, or rather

         10        political committees made up of individuals, only, can

         11        make contributions.  And it will be illegal for these

         12        other entities to make them.  I urge your support for the

         13        proposal.

         14             CHAIRMAN DOUGLASS:  Commissioner Riley.

         15             COMMISSIONER RILEY:  A question if I may.

         16             CHAIRMAN DOUGLASS:  Incidentally, I didn't announce

         17        that this was disapproved by the committee on Ethics and

         18        Elections.  And the chairman isn't here at the moment.  I

         19        forgot to announce that.

         20             Commissioner Riley, you have the floor.

         21             COMMISSIONER RILEY:  My question concerns the phrase,

         22        "for the purpose of influencing."  What's the proof of

         23        influencing other than just giving and funding?  How is

         24        this going to be carried out?

         25             COMMISSIONER SUNDBERG:  How could you indirectly?



                                                                          238

          1             COMMISSIONER RILEY:  How can you prove that someone

          2        is doing something to influence, as opposed to what I

          3        understand towards the end of it is where you are

          4        addressing the PACs?  I mean, what other purpose is there

          5        and how do you prove that, is my question.

          6             COMMISSIONER SUNDBERG:  How do you prove it?  Like

          7        you would prove it in any other instance.  If we're

          8        talking about -- and, I'm sorry, perhaps I don't

          9        understand your question.

         10             COMMISSIONER RILEY:  How are you going to -- what

         11        meaning is this if it has no consequence and how can you

         12        prove consequence if you can't prove that the purpose of

         13        this was to influence?  If my business pays the telephone

         14        bill for a candidate, how are we not trying to influence?

         15        We may not be just donating to a campaign.  See what I'm

         16        saying?

         17             COMMISSIONER SUNDBERG:  I see what you're saying.

         18        You're talking about in-kind contributions?

         19             CHAIRMAN DOUGLASS:  Let me see if I can help you

         20        answer a question, maybe you don't understand it.  She

         21        wants to know why the language is in there, where you say

         22        it's prohibiting a business entity from making any

         23        contributions, she wants to know what you say the purpose

         24        of influencing is is what's bothering her.  And I don't

         25        know how to answer that, but you do as the sponsor.  Is



                                                                          239

          1        that your question?

          2             COMMISSIONER RILEY:  I'm wondering why you're putting

          3        it in there, if it's superfluous.

          4             COMMISSIONER SUNDBERG:  Yeah, I think you do have to

          5        have that purpose.

          6             COMMISSIONER RILEY:  How are you going to prove it?

          7             COMMISSIONER SUNDBERG:  Just like you prove intent, I

          8        guess.  Would you like to respond?

          9             COMMISSIONER RUNDLE:  No, I was going to ask a

         10        question in a slightly different way.  What if someone

         11        says, I never do business with that office, I have no

         12        contact with that particular candidate and, believe me,

         13        I'm doing it because it's good government, I don't want

         14        anything, I don't have business with them, I have no

         15        conflicts, so therefore I'm not doing it for the purpose

         16        of influencing them.  Is that contribution then exempt?

         17             COMMISSIONER SUNDBERG:  No, it is not to influence

         18        the candidate, but to influence the outcome of an

         19        election.

         20             COMMISSIONER RUNDLE:  It seems like you're almost

         21        adding an additional burden.  Why not just make it

         22        strictly that you can't do it?

         23             CHAIRMAN DOUGLASS:  I think that's what he's trying

         24        to do and what he's saying is he believes the language

         25        does that by saying, in effect, the only reason you give a



                                                                          240

          1        campaign contribution in an election is to influence the

          2        election.  And therefore he was trying to say that in a

          3        manner which would be clear, I think so.

          4             COMMISSIONER SUNDBERG:  And, frankly, those are

          5        almost words of art.  That's the way the courts have

          6        spoken, in terms of -- and other statutes.  But you

          7        must -- in other words, you are making those contributions

          8        to influence the outcome of an election.

          9             CHAIRMAN DOUGLASS:  In shorthand, aren't you just

         10        saying that means the same thing as a campaign

         11        contribution?

         12             COMMISSIONER SUNDBERG:  Absolutely.

         13             COMMISSIONER RUNDLE:  May I ask two further questions

         14        if you would, while I'm up?  One kind of goes to the

         15        in-kind contribution.  When you refer to indirect support,

         16        and I'm thinking of, for instance, a CPA firm wants to

         17        donate the services of one of their accountants to act as

         18        say the treasurer of the campaign.  Would you consider

         19        that to be in violation of this section?

         20             COMMISSIONER SUNDBERG:  Frankly I have not thought

         21        about it.  If that individual is acting simply in his or

         22        her individual capacity and is contributing the time, I

         23        don't know, that's a tough question.

         24             COMMISSIONER RUNDLE:  And when you say --

         25             COMMISSIONER SUNDBERG:  Just like when you're



                                                                          241

          1        trying -- I don't think there is anything that prevents,

          2        when you talk about PACs, individuals from making those

          3        individual contributions.

          4             COMMISSIONER RUNDLE:  The CPA firm would argue that

          5        it's our firm's contribution to the campaign, that we're

          6        going to assign this person to be the treasurer and maybe

          7        have these support staff file the papers, do the

          8        accounting.  I'm just trying to understand indirect

          9        support.

         10             COMMISSIONER SUNDBERG:  And my response would be if I

         11        had to rule on it, my ruling would be the individual,

         12        because I don't think you can -- I don't think you can

         13        constitutionally proscribe an individual from individually

         14        being involved in a campaign.  If that person happens to

         15        be an accountant, that's a very good person to have as

         16        your campaign treasurer.  But that way it is the

         17        individual who is individually participating.  But that

         18        doesn't mean the accounting firm ought to, at its cost, be

         19        performing functions related to the campaign financing.

         20             COMMISSIONER RUNDLE:  Do you envision that this

         21        section would also apply to partnerships, P.A.s, law

         22        firms?

         23             COMMISSIONER SUNDBERG:  No.

         24             COMMISSIONER RUNDLE:  It says business entity,

         25        business entities.  And in my mind it would.



                                                                          242

          1             COMMISSIONER SUNDBERG:  I stand corrected.  I think

          2        you're right, I'm sorry.

          3             CHAIRMAN DOUGLASS:  Commissioner Langley.

          4             COMMISSIONER LANGLEY:  Who's presently proposing

          5        this?

          6             CHAIRMAN DOUGLASS:  Commissioner Sundberg.

          7             COMMISSIONER LANGLEY:  Commissioner Sundberg, is

          8        there anyplace else in the Constitution that sets out a

          9        crime like this that it shall be unlawful?  Does that

         10        mean, is that a civil, criminal, felony, misdemeanor?

         11        What is the infraction?  I've never seen a law setting,

         12        creating a crime without the punishment, is that to be in

         13        there also?  Is it a first, second or third degree felony?

         14             CHAIRMAN DOUGLASS:  It's capital.

         15             COMMISSIONER SUNDBERG:  I think that will have to be

         16        fleshed out by the Legislature.

         17             COMMISSIONER LANGLEY:  Shouldn't it read, the

         18        Legislature shall, and do that rather than -- I don't know

         19        of anywhere else in the Constitution where we create a

         20        crime.  It's an entitlement and restrictive as opposed to

         21        creating a crime.  And I don't know if you can answer

         22        that.

         23             COMMISSIONER SUNDBERG:  I think you're right; I think

         24        you're right.

         25             COMMISSIONER LANGLEY:  And, secondly, back to that



                                                                          243

          1        good old adage, a level playing field.  Harris Corporation

          2        down in Brevard County under this could not make a

          3        contribution to the candidate of their choice.  But the

          4        Electrical Workers' Union that works for Harris

          5        Corporation, 1500 of them could make individual

          6        contributions and that's fine.

          7             COMMISSIONER SUNDBERG:  And the employees and

          8        executives of Harris Corporation could make them, too.

          9             COMMISSIONER LANGLEY:  Not quite as numerous.

         10             COMMISSIONER SUNDBERG:  They are one and the same.

         11        Oh, you're talking about the entire labor union as opposed

         12        to only those employed by Harris?  Well, true.  But by the

         13        same token, other, presumably through the Chamber of

         14        Commerce and other organizations in which Harris is a

         15        member, they can encourage individuals to make

         16        contributions, just as the labor union can.

         17             CHAIRMAN DOUGLASS:  Commissioner Riley.

         18             COMMISSIONER RILEY:  Question.  Since the Chamber of

         19        Commerce is incorporated, since the Republican party of

         20        the state is incorporated as is the Democratic party and a

         21        whole variety of other political and/or 501(c)(3)

         22        corporations.  Since they are incorporated, would they be

         23        allowed or would they be included in the business as

         24        you're talking about here?

         25             COMMISSIONER SUNDBERG:  I don't think so.  They are



                                                                          244

          1        not a business entity.  Their purpose is not to conduct a

          2        business.

          3             COMMISSIONER RILEY:  Even though they are

          4        incorporated?

          5             COMMISSIONER SUNDBERG:  Sure.  There are a lot of

          6        eleemosynary organizations that are incorporated.

          7             CHAIRMAN DOUGLASS:  Some unintentional.  Commissioner

          8        Morsani.

          9             COMMISSIONER MORSANI:  Commissioner Sundberg, I'm

         10        obviously for campaign reform --

         11             COMMISSIONER SUNDBERG:  Good.

         12             COMMISSIONER MORSANI:  -- but it doesn't seem like

         13        this -- we're not going in the right direction, I don't

         14        think.  But in the -- as an example, and you legal folks

         15        here can tell me, I see that as piercing the veil along

         16        the lines that Ms. Rundle said, Commissioner Rundle.

         17             If I, who may be an activist in a party and I support

         18        Commissioner Sundberg for political office and I take away

         19        from my business and I own the business, and the reason

         20        I'm able to be an activist for his campaign or her

         21        campaign and I can make speeches in their behalf, I dare

         22        say that someone would possibly challenge me that really

         23        my business was the contributor there and not I because I

         24        was on the business' payroll and therefore I was acting as

         25        a spokesman for my company vis-a-vis my personal



                                                                          245

          1        involvement.  You don't think that's, that is correct?

          2             COMMISSIONER SUNDBERG:  You can postulate, you know,

          3        all sorts of situations like that.  No, I don't see that

          4        as any significant problem.  It happens lots where

          5        employees of governmental agencies take leaves of absence,

          6        they also do it on their own time and support political

          7        activities that would be inappropriate for them to do as a

          8        member of their agency.

          9             I mean those things happen.  And I see you're

         10        becoming more initiated in the ways of the law.  You're

         11        piercing corporate veils here.

         12             COMMISSIONER MORSANI:  I had that challenge a few

         13        times.  So far I've prevailed, but I might not sometime.

         14        I'm very concerned about it.  In fact, as an example, the

         15        CPA firm.  I think that's an excellent one of major

         16        concern because if you select a CPA firm to be your

         17        campaign treasurer, which is a logical person to do it,

         18        now suddenly that firm is making a contribution because

         19        that person is employed by that firm.

         20             COMMISSIONER SUNDBERG:  You just said, if you select

         21        that firm to be your campaign treasurer, you would be

         22        precluded from doing that.  You would not be precluded, I

         23        believe -- because that would be an in-kind contribution.

         24        I do not think that an individual accountant in that firm

         25        is precluded, however, from individually being your



                                                                          246

          1        campaign chairman or your campaign treasurer, I mean.

          2             COMMISSIONER MORSANI:  I wouldn't want to be on the

          3        other side of that contest.

          4             CHAIRMAN DOUGLASS:  All right.  Do we have anybody

          5        else?  Commissioner Rundle, you rise.

          6             COMMISSIONER RUNDLE:  I feel like I'm wasting time.

          7        I'm trying to think of scenarios of how this really plays

          8        out, having been through a couple of elections myself.

          9             And I feel bad because I keep thinking of other ways

         10        in which this may or may not apply.  And I don't want to

         11        bore everybody with different sorts of hypotheticals, but

         12        I guess I just don't find the language is tight enough or

         13        easily understood.  I don't know that the voters will.

         14        I'm confused with many parts of it.  So I'm going to vote

         15        against it.

         16             CHAIRMAN DOUGLASS:  Commissioner Thompson?

         17             COMISSIONER THOMPSON:  Well I would like to say a

         18        word or two against it.  And I'm in favor of campaign

         19        reform, as we've just been talking about.  I know that

         20        Mr. Corr and -- Commissioners Sundberg and Corr are very

         21        interested in it.

         22             And if I thought this would do anything, I would vote

         23        for it.  But it looks to me like it does a couple of

         24        things.  It prohibits, if I understand it correctly -- and

         25        I guess we all have got a right to be a little confused



                                                                          247

          1        now because we get the proposal in our jackets and then we

          2        get the proposed amendments and we read through them and

          3        we hear the debate and we do get a little confused, I

          4        certainly do.

          5             But the way I understand it, it prohibits

          6        contributions into an individual's campaign from a

          7        corporation or a labor organization.  And if that's the

          8        case, but it doesn't prohibit contributions from PACs, and

          9        we talked about that a little earlier and I expressed my

         10        opinion on that, which differs from quite a few of you.

         11             But on this, on corporations, you know, they have got

         12        that with the federal government, I'm sure, everybody

         13        knows that, that prohibition from giving a check to your

         14        Congressman or Congressperson through your corporation or

         15        your law firm or whatever.  And all they do is, you know,

         16        just run around and get individual contributions and it

         17        just doesn't amount to anything.

         18             It would be -- I mean, the same person many times is

         19        going to sit there who is the primary owner of the

         20        corporation who's going to write a check from an

         21        individual account rather than from the corporate account.

         22        If it's a bigger corporation and not a little mom and pop,

         23        then they get some of their executives or they get some of

         24        the vendors to write the checks.  So I think that is not

         25        really the problem.



                                                                          248

          1             I think in Florida, legislatively, we have dealt with

          2        what I perceived to have been a potential problem there by

          3        having two things.  Number one is the disclosure laws.

          4        You have got to disclose who gave and who got.  And that,

          5        I think, is very helpful and takes care of half the

          6        problem.  The other half is taken care of just by the

          7        limits.  You know, you've got a $500 per candidate per

          8        election cycle limit.

          9             So with those two things, I personally think that

         10        it's wrong to single out anybody and really say that you

         11        can't make a contribution.  And since I was quoted a

         12        little earlier I want to be sure that I clarify that in

         13        this particular situation, I mean, I think that the law is

         14        sufficient and I think if we do this it really won't

         15        amount to anything.  And, therefore, I don't think it

         16        rises to the level for us to propose it to the public.

         17        Thank you.

         18             CHAIRMAN DOUGLASS:  Any other opponents?

         19        Commissioner Sundberg to close.

         20             COMMISSIONER SUNDBERG:  Yes, sir.  Commissioner

         21        Thompson, I hope I didn't -- I certainly didn't intend to

         22        misquote you.  What I understood you to be saying is that

         23        businesses didn't like to have to make these

         24        contributions, but since all their competitors were doing

         25        it, they felt it necessary to do it.  And that so long as



                                                                          249

          1        it was not illegal, they felt obliged to do it.

          2             So I would suggest to you, if that's what you did

          3        say, that it will have the effect of saying to the

          4        businessman, just like when I was a judge, nobody came to

          5        me for political contributions and I loved it.

          6             So that if the business says, Golly, I'd really love

          7        to help you out there, Mr. Candidate, but I cannot because

          8        I'm precluded by law from doing so.  It seems to me, you

          9        know, we had significant debate on the issue of public

         10        financing.  And during the course of that debate everybody

         11        seemed to be foursquare in favor of saying, it is a far

         12        better thing if we get these contributions out of the

         13        process so that special interests cannot drive these

         14        elections.

         15             This is a way to do it.  It's done in the federal

         16        government.  So there is nothing -- 15 states do it.  Will

         17        it be a panacea?  No.  But I think it's another step,

         18        together with the proposal we're going to put on the

         19        ballot for public funding, to help put the political power

         20        back in the people.  Thank you.

         21             CHAIRMAN DOUGLASS:  Commissioner Kogan, you were

         22        chairman of the committee that disapproved this.  Do you

         23        recall the discussion on it?  Nobody told us about the

         24        committee action.

         25             COMMISSIONER KOGAN:  We disapproved it.  But in all



                                                                          250

          1        fairness, Commissioner Sundberg was not present at the

          2        time to explain what he's been explaining here.

          3             CHAIRMAN DOUGLASS:  So what was the rationale of the

          4        committee in disapproving it; do you recall?  That he

          5        wasn't there?

          6             COMMISSIONER KOGAN:  No, no, no, no.  Unless

          7        Commissioner Freidin remembers exactly what it was or

          8        Commissioner Corr remembers what it was -- but in any

          9        event, I don't remember.  You know, we have reached the

         10        point of the day, Mr. Chairman, where I think all of us

         11        are starting to blank out a little bit mentally on this

         12        whole thing.  But I do know it was not approved, but he

         13        wasn't there.  So his usual persuasive -- but Commissioner

         14        Freidin may remember exactly why.

         15             CHAIRMAN DOUGLASS:  If there's no extensive

         16        discussion, there's no need.

         17             COMMISSIONER KOGAN:  We did have, you know, people

         18        that spoke for and against it.

         19             CHAIRMAN DOUGLASS:  Okay.  You have the same

         20        recollection he did.

         21             COMMISSIONER FREIDIN:  I remember.

         22             CHAIRMAN DOUGLASS:  Would you tell us what the

         23        committee's --

         24             COMMISSIONER FREIDIN:  My recollection, and anybody

         25        else that was there, please correct me if I'm wrong, was



                                                                          251

          1        that there was discussion of bundling.  And the fact that

          2        restricting corporate contributions really doesn't have a

          3        lot of effect because you just go then to the corporate

          4        officers and employees and get contributions from them and

          5        they get delivered all in one envelope and it's

          6        essentially the same thing.  That's my recollection of the

          7        discussion.

          8             CHAIRMAN DOUGLASS:  Which is the same question you

          9        had, was it not, in a different context, that it would

         10        bundle in the labor unions.

         11             COMMISSIONER LANGLEY:  Mr. Chairman, I want to

         12        correct some misinformation.

         13             CHAIRMAN DOUGLASS:  Certainly.

         14             COMMISSIONER LANGLEY:  When I talked about the

         15        criminal penalties, Commissioner Connor and I -- pardon?

         16        There are two actually, we found another one.

         17             In the right to bear arms it specifies the penalty.

         18        It says, second degree misdemeanor, 60 days, $500.  And

         19        also in the gill net violations, the crime is created but

         20        the penalty is also created in there.  So I think if

         21        you're going to make a crime, don't you have to put the

         22        penalty with it?

         23             COMMISSIONER SUNDBERG:  You do it by reference to the

         24        penalty statute, you're absolutely right.  Style and

         25        drafting can do that.



                                                                          252

          1             CHAIRMAN DOUGLASS:  Assuming they can find the

          2        statute.  Are we ready to vote?  All right.  We move for

          3        passage of the proposal, would you unlock the machine?

          4             (Vote taken and recorded electronically.)

          5             CHAIRMAN DOUGLASS:  Has everybody voted?

          6             READING CLERK:  Six yeas, 18 nays, Mr. Chairman.

          7             CHAIRMAN DOUGLASS:  All right.  The next proposal

          8        is -- Commissioner Kogan?

          9             COMMISSIONER KOGAN:  Mr. Chairman, before getting to

         10        the next proposal, I don't know whether or not this is a

         11        point of personal privilege or what it's called, but I've

         12        been speaking to a number of the members of the

         13        commission.  And quite frankly, they have expressed to me

         14        the point that they are mentally fatigued.  If it's in

         15        order, I would like to move at this time for us to adjourn

         16        until tomorrow morning, because I don't know how

         17        productive we're going to be from this moment on.

         18             CHAIRMAN DOUGLASS:  Motion to adjourn.  I'll tell you

         19        what, I'll entertain that motion if you make it, but it

         20        seems to me that we might take about a 10-minute recess

         21        and come back and try to do a couple more proposals.  It

         22        might refresh you to have social discourse with your

         23        member friends and get a Coke.  Let's try that, if that's

         24        agreeable to everybody.

         25             Commissioner Barkdull.



                                                                          253

          1             COMMISSIONER BARKDULL:  Recess until 4:15.

          2             CHAIRMAN DOUGLASS:  Without objection, we'll recess

          3        to 4:15.  We'll keep it secure in here, please.

          4             (Recess taken from 4:00 p.m. to 4:15 p.m.)

          5             SECRETARY BLANTON:  Quorum call, quorum call.  All

          6        commissioners indicate your presence, all commissioners

          7        indicate your presence.

          8             Quorum present, Mr. Chairman.

          9             CHAIRMAN DOUGLASS:  All come to order please.  Nobody

         10        is in their seats.  Yes, they are, one or two.  All right,

         11        Proposal No. 186 by Commissioner Thompson.

         12             COMMISSIONER THOMPSON:  Mr. Chairman, what I want to

         13        do is just defer consideration of this one until the next

         14        time that we get together, not tomorrow, but a week, two

         15        weeks from now or whatever.

         16             CHAIRMAN DOUGLASS:  You want to defer it to the next

         17        meeting of the commission, its weekly session.

         18             COMMISSIONER THOMPSON:  Yes.  I have had several of

         19        the lay members of the commission tell me that it was

         20        simple and they understood it so I need to see if I can

         21        come up with a complicated amendment.

         22             CHAIRMAN DOUGLASS:  Could you consult with

         23        Commissioners Henderson and Nabors?

         24             COMMISSIONER THOMPSON:  I plan to do so.

         25             (Laughter.)



                                                                          254

          1             CHAIRMAN DOUGLASS:  And then you can get Mr. Corr to

          2        straighten us out, right, Commissioner Corr?  All right.

          3             We have got several of these initiative things on

          4        here.  What I would propose to do, with the permission of

          5        the body, is to --

          6             COMMISSIONER BARKDULL:  Mr. Chairman.

          7             CHAIRMAN DOUGLASS:  Yes.

          8             COMMISSIONER BARKDULL:  Inquiry of the Chair.  What

          9        happened to 135?

         10             CHAIRMAN DOUGLASS:  It's already been done, hasn't

         11        it?

         12             COMMISSIONER HENDERSON:  We removed it from

         13        consideration pending working with the committee on F and

         14        T and in deference to Senator Scott and Mr. Mills.  It

         15        should not have been on the agenda today.  So it should

         16        be --

         17             COMMISSIONER BARKDULL:  Temporarily passed.

         18             COMMISSIONER HENDERSON:  Actually it should be off of

         19        the special order calendar until we get all that worked

         20        out.  That was what the unanimous consent request was

         21        yesterday.

         22             CHAIRMAN DOUGLASS:  I remembered we did something on

         23        this.  So it has been removed from the special order and

         24        improperly appears on the special order.

         25             COMMISSIONER HENDERSON:  It should be on the



                                                                          255

          1        calendar, and not the special order calendar.

          2             CHAIRMAN DOUGLASS:  Okay.  We will correct that

          3        without motion.  What I was fixing to say, there is -- I

          4        think I forgot to say we discussed that at the recess and

          5        that that was the case.

          6             Several of these, I believe there is seven separate

          7        things that relate to initiatives, statutory or

          8        constitutional initiatives.  What I would like to do with

          9        the, without objection is create a select committee to

         10        come back and give us either a substitute or substitutes

         11        so that we could debate and act on the principles involved

         12        in a more orderly fashion.  And without objection I will

         13        do that and we will not bring these up until the next

         14        weekly meeting.

         15             Commissioner Henderson.

         16             COMMISSIONER HENDERSON:  Mr. Chairman, I'm thinking

         17        about whether to object and I certainly don't want to.

         18             CHAIRMAN DOUGLASS:  You can.

         19             COMMISSIONER HENDERSON:  But I think it just, I

         20        wanted the rest of the body -- the chairman of our

         21        committee is not here right now.  But I certainly wanted

         22        the rest of the commissioners to know that each of these

         23        seven proposals was given consideration by the committee

         24        on general provisions, and the recommendation is that none

         25        of them, is that none of them reported favorably.



                                                                          256

          1             And so I think I hear what your decision or what you

          2        are attempting to do is a way to get these issues

          3        collected together to come before us and not to take it

          4        away from the committee and give it to another committee

          5        to come forward with a favorable recommendation.  Is that

          6        what you are proposing?

          7             CHAIRMAN DOUGLASS:  My proposal is to ensure that the

          8        public has the benefit of an orderly debate on the exact

          9        issues that have been brought up in public hearings and

         10        are raised by these items.  We have not operated as a

         11        committee-run commission.  And the fact that a committee

         12        disapproves something has not been considered anything

         13        other than reporting it to the commission.

         14             Since also we are even very short on members here

         15        today, now, this afternoon, I think this issue has been

         16        brought up everywhere we have gone and every editorial

         17        board I have talked to.  And to not give it a fair debate,

         18        as we have some other matters that didn't have committee

         19        support, would be a disservice to the commission and to

         20        the general public.

         21             It is not that I am for it or against it, but I think

         22        to brush it, which is what this might be appeared to be,

         23        to take it up this late and it would be better to have it

         24        presented on the two or three major issues that are

         25        involved so that it could be orderly debated.



                                                                          257

          1             And I think that was my purpose in doing this, not

          2        just to create another committee.  But what I understood

          3        from my conversation with you and Commissioner Mills,

          4        there wasn't any point in sending it back to your

          5        committee because you didn't like any of it.  But I want

          6        the rest of the commission to have the benefit of some

          7        debate on this.

          8             Commissioner Mills.

          9             COMMISSIONER MILLS:  Mr. Chairman, I think perhaps to

         10        endorse your proposal, I, in fact, had a proposal on

         11        statutory initiatives.  There are proposals, there are a

         12        number of proposals here on constitutional initiative

         13        reforms.  If what you are suggesting is to try to get

         14        those folks together so that you can have a proposal on

         15        each of those options that we can vote up or down, I think

         16        that makes some sense.  I personally have been --

         17             CHAIRMAN DOUGLASS:  Each of those options or some

         18        combination maybe, whatever would be a way to reach the

         19        issues on the floor for an orderly debate is what I'm

         20        looking for.  And we will try to do that, if that's

         21        agreeable.

         22             COMMISSIONER MILLS:  Since mine is next up, that's

         23        fine with me.  Having that referred to a group that would

         24        combine that with other issues is fine.

         25             CHAIRMAN DOUGLASS:  All right.  We'll do that and



                                                                          258

          1        we'll take it up or put it on the special order for the

          2        next meeting in this month.  That then moves us to a

          3        proposal by Commissioner Corr, No. 118, which was approved

          4        by the committee on education.  Would you read it please?

          5             (Pause.)

          6             CHAIRMAN DOUGLASS:  Have you read it?

          7             READING CLERK:  Proposal 118, a proposal to revise

          8        Article X, Section 15, Florida Constitution; providing

          9        that lotteries may be operated by the state for the sole

         10        purpose of raising proceeds to enhance funding for public

         11        education programs; providing that proceeds be

         12        appropriated directly to school advisory councils for the

         13        sole purpose of enhancing school programs.

         14             CHAIRMAN DOUGLASS:  Now Commissioner Corr.

         15             COMMISSIONER CORR:  Mr. Chairman, I yield to

         16        Commissioner Nabors.

         17             COMMISSIONER NABORS:  Commissioner Jennings isn't

         18        here.  Yesterday in the Education Committee, we had

         19        compelling testimony dealing with lotteries.  And the

         20        sense was is we have -- this and the next two proposals

         21        all deal with lotteries -- that we were going to attempt

         22        to get together along with the proposal Commissioner

         23        Sundberg has and try to resolve these.  I talked to the

         24        rules chairman about the idea of not trying to put this on

         25        the special order until we have that opportunity.



                                                                          259

          1             The other difficulty we have is that all of these

          2        have an economic impact which we are trying to resolve

          3        depending on how the money is dedicated.  And we really

          4        are not in a position to consider these yet and it would

          5        not be helpful to try to consider them one at a time.

          6             So what we really would like to do is, however the

          7        rules chairman wants it to go, is either TP these until

          8        the next meeting or I'd like to not have them on the

          9        calendar until we can get back with the rules chairman and

         10        say we have resolved these issues.

         11             CHAIRMAN DOUGLASS:  Commissioner Barkdull --

         12        Commissioner Riley.

         13             COMMISSIONER RILEY:  If I may speak for the Education

         14        Committee.

         15             CHAIRMAN DOUGLASS:  Yes, that's right, you are vice

         16        chairman, I keep forgetting that.

         17             COMMISSIONER RILEY:  That's okay, Mr. Chairman.  We

         18        did, in fact, do what you are talking about doing with the

         19        initiative and try to pull everything together.  However,

         20        we weren't able to meet with Commissioner Sundberg yet and

         21        so I would concur with Mr. Nabors.  I don't think it will

         22        take us a good deal of time to at least see where they all

         23        stand within the idea of the Lottery funds because we are

         24        all on the same page.  We are just not quite sure how we

         25        are going to read the paragraphs.



                                                                          260

          1             CHAIRMAN DOUGLASS:  Are we going to TP them for a

          2        time, to a time certain, or not?

          3             COMMISSIONER NABORS:  Can we get with the rules

          4        chairman as soon as we have resolved it?

          5             CHAIRMAN DOUGLASS:  Well the rules chairman is in

          6        conference at the moment.  Commissioner Barkdull.

          7             COMMISSIONER BARKDULL:  Yes, sir.

          8             CHAIRMAN DOUGLASS:  The people connected with the

          9        Education Committee, they have approved two of these --

         10        one of these and made a committee substitute and

         11        disapproved one relating to the Lottery funds being used

         12        for education, basically.  And they want to get with you

         13        to r-ecalendar these, and they don't know when.

         14             So you weren't listening to the discussion.  What

         15        they said was that they hadn't had an opportunity to

         16        resolve which one they wanted to support.

         17             COMMISSIONER BARKDULL:  Well we have got people

         18        scheduled to be here now, we have got to have things to

         19        work on.  I suggest to them that between now and tomorrow

         20        they try to get their act together.

         21             CHAIRMAN DOUGLASS:  All right.  So he says between

         22        now and tomorrow.

         23             COMMISSIONER NABORS:  May I speak to it?

         24             CHAIRMAN DOUGLASS:  Certainly you can speak to it.

         25             COMMISSIONER NABORS:  You and I discussed this prior,



                                                                          261

          1        the fact that these are not going to be ready, they can't

          2        be ready by tomorrow.  They have not only resolved the use

          3        of the Lottery funds, but also there is a funding

          4        implication as well.  It is really not going to facilitate

          5        any of our time to try to deal with this tomorrow.  This

          6        is an important issue and I think we would be in a

          7        position to deal with it perhaps at the next meeting in

          8        February.

          9             But it is not possible.  It is not just a question of

         10        looking at language here and there, there is some

         11        philosophical things, not only dealing with use but also

         12        how you are going to pay for the ramifications on the

         13        state budget.

         14             CHAIRMAN DOUGLASS:  I have a motion to temporarily

         15        pass these three.  I'll take them one at a time.

         16        Temporarily pass Proposal 118 by Commissioner Corr,

         17        Commissioner Corr moves to temporarily pass it.  Without

         18        objection it is.

         19             Proposal 54 by Commissioner Zack, he isn't here;

         20        without objection, it is temporarily passed.  Committee

         21        substitute for Proposals 138 and 89 by the committee on

         22        education and Commissioners Nabors and Riley who move to

         23        temporarily pass it.  Without objection, it is temporarily

         24        passed.  It will be re-calendared by the Rules Committee.

         25             The next item is -- you have got an objection?



                                                                          262

          1             COMMISSIONER BARKDULL:  No, sir.

          2             CHAIRMAN DOUGLASS:  Okay.  We will go to the next

          3        item which is Proposal 181 by Commissioner -- I didn't

          4        mean to sound like, you have got one, I'll come down there

          5        and get you.

          6             But I have an inquiry from Commissioner Rundle that

          7        came through the secretary since I didn't see you standing

          8        up.  You are recognized.

          9             COMMISSIONER RUNDLE:  We are doing calendar

         10        housekeeping.

         11             CHAIRMAN DOUGLASS:  Indeed.

         12             COMMISSIONER RUNDLE:  It occurred to me what we need

         13        to do, Mr. Zack is not here, but he made a motion to

         14        reconsider Proposal 1, we need to adopt that motion so it

         15        can be deferred.

         16             CHAIRMAN DOUGLASS:  Okay.  Everyone in favor of the

         17        motion that Mr. Zack would make if he was here, say aye;

         18        opposed?

         19             (Verbal vote taken.)

         20             CHAIRMAN DOUGLASS:  It is done.  Now we go to, defer

         21        consideration without objection of the proposal.

         22             Proposal 181 by Commissioner Brochin.  Please read

         23        it.  This is one now you are going to listen to.  This is

         24        one we should pay close attention to, Commissioner Kogan,

         25        and wake up.  Not you, the rest of us.



                                                                          263

          1             COMMISSIONER KOGAN:  All right.

          2             READING CLERK:  Proposal 181, a proposal to revise

          3        Article IX, Section 1, Florida Constitution; providing

          4        public rights to and state duties to provide complete and

          5        adequate public education.

          6             CHAIRMAN DOUGLASS:  Commissioner Brochin.

          7             COMMISSIONER BROCHIN:  Okay.  This is a proposal that

          8        actually really supplements what we have already done as a

          9        commission.  If you recall, we have explicitly put into

         10        the Constitution a definition for adequacy and what that

         11        means.  And I believe that passed 23 to 1 by this

         12        commission.  This, as written, is not in sync with that so

         13        it needs some drafting consistency to supplement

         14        Commissioner Mills' proposal.

         15             But essentially, if you will look at the analysis,

         16        you will see that in the state of Florida we have an

         17        extraordinarily long list of fundamental rights.  They

         18        range from the right to enjoy life and liberty to pursue

         19        happiness, to even assemble peacefully, the right to bear

         20        arms, searches and seizures, have habeas corpus, pretrial

         21        release, presentment of crimes and other sundry basic and

         22        fundamental rights.

         23             What this proposal does is take education, which has

         24        its own article in our Constitution, and simply declares

         25        it to be a fundamental right.  The idea is not mine, it



                                                                          264

          1        comes out of our own Constitution.  It comes out of our

          2        Constitution from 1868.  And although I didn't use the

          3        exact language, I used language fairly close.

          4             And what the 1868 Constitution says is that it is the

          5        paramount duty of the State to ensure that children, and

          6        they use the word children, have a right to an education

          7        without distinction or preference.  And this is modeled

          8        after that.  It was a good idea in 1868 and it is even a

          9        better idea in 1998.

         10             As I mentioned to this commission when we discussed

         11        the adequacy provision, I have had an opportunity to

         12        review all of the state Constitutions that deal with the

         13        subjects of education.  And many of those states talk

         14        about education as a fundamental right.  Many of those

         15        states go on for sentences and paragraphs about the

         16        fundamental need to education and how education paves the

         17        way to democracy and freedom in their state and lays out

         18        in fairly lofty goals the right of children to have an

         19        education in their state.

         20             And when you read those various proposals and those

         21        various constitutional provisions in the states, you come

         22        away empty in that the state of Florida does not approach

         23        some statement to our people about the right of an

         24        education.  And I think the time has come for us to take

         25        that right and make sure that the children of our state



                                                                          265

          1        have it.

          2             Now I want to point out clearly and for purposes of

          3        intent that as the education of our children in the state

          4        move in various directions, whether it be charter schools,

          5        private schools, public schools, and whatever preference

          6        you have as to how our children are educated, this

          7        amendment does not address that.

          8             What this amendment does is says as we move off in

          9        those directions, and some very exciting directions and

         10        very challenging directions, this amendment is going to

         11        ensure that everybody moves together, that every child is

         12        ensured an education; the poor, the black, the whites, the

         13        Asians, the Hispanics.  Everybody will be ensured of this

         14        fundamental right, no matter what direction this state

         15        takes.

         16             So it is for that purpose I have proposed it and it

         17        is for that purpose that I hope we will adopt it.

         18             CHAIRMAN DOUGLASS:  All right.

         19             COMMISSIONER SUNDBERG:  Mr. Chairman, for a question.

         20             CHAIRMAN DOUGLASS:  Yes, Commissioner Sundberg.

         21             COMMISSIONER SUNDBERG:  Commissioner Brochin, to make

         22        it consistent, need we do anything but put "adequate" back

         23        in and strike "ample"?  You struck "adequate" and inserted

         24        "ample".

         25             COMMISSIONER BROCHIN:  Well --



                                                                          266

          1             COMMISSIONER SUNDBERG:  That's not a rhetorical

          2        question.

          3             COMMISSIONER BROCHIN:  No, the answer to the question

          4        is, yes, that's certainly the first thing we need to do

          5        because ample is no longer necessary since we have defined

          6        adequate.  But it also says that such education is

          7        complete and adequate and I need to go back and put it in

          8        in light of the amendment that was passed.

          9             COMMISSIONER SUNDBERG:  Okay.

         10             COMMISSIONER BROCHIN:  There is some wording that

         11        just needs to be done, but this intent is to raise it to a

         12        fundamental right.

         13             CHAIRMAN DOUGLASS:  Commissioner Riley.

         14             COMMISSIONER RILEY:  I would agree with that.  And if

         15        Commissioner Brochin is agreeable, I'll put together an

         16        amendment that will put "adequate provision" back in and

         17        take "ample" out because in fact what we passed yesterday

         18        speaks specifically to adequate provision and then defines

         19        it.

         20             CHAIRMAN DOUGLASS:  I have a question.  What this

         21        would mean then is your proposal would then become the

         22        part that says each resident of this state has a

         23        fundamental right to a public education during the primary

         24        and secondary years of study, and it is the paramount duty

         25        of the state to ensure that such education is complete and



                                                                          267

          1        adequate?  Or are you stopping at the period after study?

          2        Is that --

          3             COMMISSIONER BROCHIN:  No, I mean, what we need to do

          4        is that word "ample" certainly needs to be changed to

          5        "adequate."  But the further suggestion that I would have

          6        in drafting at least is I wouldn't say -- I wouldn't stop

          7        a sentence, end a sentence with "adequate" and start the

          8        next sentence with "adequate.  I think it needs to be

          9        rewritten in light of the fact --

         10             CHAIRMAN DOUGLASS:  Of what we have already adopted.

         11             COMMISSIONER BROCHIN:  Right.  I just think it needs

         12        a little bit of consistency to it that I think style and

         13        drafting could very well handle.

         14             CHAIRMAN DOUGLASS:  But isn't the only thing you are

         15        adding here the fundamental right becoming a part of the

         16        Constitution, assuming that you adopted the other

         17        resolution, I mean, proposal?

         18             COMMISSIONER BROCHIN:  That it is a fundamental

         19        right, and that it is the duty of the State to ensure that

         20        the education is adequate.  And therefore adequate is then

         21        defined.  And the word "ensure" is intentionally made

         22        because it doesn't mean the State necessarily has to

         23        provide that education, it means that the State has to

         24        ensure that that education is adequate.

         25             CHAIRMAN DOUGLASS:  All right.  The reason I am



                                                                          268

          1        saying that is I think we could probably get a sense by

          2        voting on whether or not people want to put the

          3        fundamental right, which we dealt with before at other

          4        times, into the Constitution.

          5             And is that why you rise, Commissioner Langley?

          6        Commissioner Langley is recognized.

          7             COMMISSIONER LANGLEY:  Mr. Chairman, I don't know how

          8        many folks are familiar with football, but the absolute

          9        worst position to play in football is noseguard.  Every

         10        play, you get hit.  I don't care if it is going left,

         11        right or center, you get hit on every play.  And in the Xs

         12        and Os, you are the first O that they put the X on.

         13        That's the way I feel today in here, that I am the

         14        noseguard for the people of Florida.

         15             I don't know how many of you are familiar with

         16        Costello versus State of Florida.  That was a prisoner

         17        over in Raiford who sued the State of Florida said, I

         18        don't get adequate medical attention.  And so our

         19        jurisdiction of the Florida prisons were turned over to a

         20        federal judge in Jacksonville.  Bear in mind a lot of

         21        things needed to be corrected, but that little escapade

         22        cost the State somewhere between 3 and $500 million.

         23             Now we are going to sit here in our little

         24        mini-Legislature, this commission, and we are going to

         25        say, if you will look at the staff analysis, this proposal



                                                                          269

          1        would shift final authority for determining the adequacy

          2        of public school systems from the Legislature to the

          3        judicial system, the judicial system which we are in the

          4        process here of making totally appointed.

          5             So the people now have no voice, they can't elect the

          6        judges and their elected people can't make any decisions

          7        and here is the blank check, Mr. Federal Judge or

          8        Mr. State Supreme Court, Mr. Kogan, if you are capable of

          9        doing this, here is a blank check, just write it.  And the

         10        Legislature, by court order, would have to go raise the

         11        funds to pay that check, to cover that check.

         12             And it would be a bunch of experts that say, You

         13        know, Lake County is only spending $6300 per year per

         14        student, we need for them to spend $10,000 per year per

         15        student.  So you, Lake County, raise ad valorem taxes to

         16        get that money.  Is that what you want to do?  I mean, you

         17        know, there are limits, there is no inexhaustible supply

         18        of taxpayer funds.  And we can't just hand a blank check

         19        to a court system and say, have adequate education for the

         20        state of Florida.

         21             Trust your elected people, that's all we can do.

         22             CHAIRMAN DOUGLASS:  Now the safety man, Commissioner

         23        Mills.

         24             COMMISSIONER MILLS:  Mr. Chairman, I first want to

         25        say explicitly I don't think Commissioner Langley looks



                                                                          270

          1        like he has been playing noseguard that long.

          2             First of all, the comment on the staff report, I want

          3        to address that because I actually had a conversation on

          4        this with a couple people.  I think the staff report is

          5        wrong.

          6             I think the staff report that says it shifts the

          7        education system to the courts is just an incorrect

          8        interpretation.  And this relates to our conversation the

          9        other day, which was the court in the adequacy case, four

         10        of the members of the court said they were willing to

         11        address and define the issue of adequacy.  So if one is

         12        concerned about whether this might go to court, it might

         13        go to court now; this doesn't change that.

         14             We removed from the definition of adequacy financial,

         15        the financial term.  By inserting this, there is no

         16        additional financial consequence as I read this.  By

         17        determining this as a fundamental right, I think actually

         18        some of the statements of our court have indicated

         19        education might be close to being a fundamental right

         20        already.

         21             And then the comparison of the rights of prisoners to

         22        litigate and the rights of students to litigate their

         23        well-being only makes me think, having been on the

         24        receiving end of the Legislature when the Costello bill

         25        came in, yes, it irritated me to sit around and think that



                                                                          271

          1        a prisoner was able to constitutionally define an adequate

          2        living space.

          3             The only thing that makes me more angry than that is

          4        a student doesn't have the right to constitutionally

          5        define their living space.  We have more protection for

          6        the way we treat a prisoner than the way we treat a

          7        student.  This would help change that.

          8             CHAIRMAN DOUGLASS:  Commissioner Lowndes?

          9             COMMISSIONER LOWNDES:  I'd like to ask a question of

         10        the proponent.

         11             CHAIRMAN DOUGLASS:  Commissioner Brochin?

         12             COMMISSIONER LOWNDES:  Mr. Brochin -- Commissioner

         13        Brochin, does this apply to children?

         14             COMMISSIONER BROCHIN:  Yes.

         15             COMMISSIONER LOWNDES:  How do we know that from the

         16        language?

         17             COMMISSIONER BROCHIN:  Oh, I'm sorry it does not,

         18        yes.  No, it applies to every resident but it is limited

         19        to a primary and secondary education.  So it is only -- it

         20        doesn't go beyond the secondary education.

         21             COMMISSIONER LOWNDES:  So if someone was 40 years old

         22        and didn't have a primary and secondary education, the

         23        State would be required to give them one?

         24             COMMISSIONER BROCHIN:  They would have access to a

         25        public education, yes.



                                                                          272

          1             CHAIRMAN DOUGLASS:  Commissioner Rundle.  You are

          2        next, Commissioner Morsani.

          3             COMMISSIONER RUNDLE:  I'm sort of piggybacking on

          4        that issue of who is entitled to it.  By the way, I really

          5        applaud this kind of concept and I think it is really

          6        needed in the state of Florida and I would support it

          7        fully.

          8             But I do have a question about the definition of

          9        "resident" and maybe it is due to my heritage that makes

         10        me a little sensitive about it, and I think of the

         11        experience in California where they said illegal

         12        residents, children were not entitled to public education.

         13        What do you consider the word "resident" to mean?  Or have

         14        you thought that through?

         15             COMMISSIONER BROCHIN:  I have thought it through and

         16        I took it from other constitutional provisions to have

         17        some consistency as "residents" is used in the

         18        Constitution as a whole.  I'm not sure, to be frank,

         19        whether it would apply to illegal residents.  I don't know

         20        the answer to that question.

         21             CHAIRMAN DOUGLASS:  Commissioner Morsani?

         22             COMMISSIONER MORSANI:  I guess my questions are being

         23        somewhat redundant of what's already been asked,

         24        Commissioner Brochin, but I have a serious problem with

         25        fundamental rights.  And the other questions that



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          1        Mr. Lowndes and Ms. Rundle raised.

          2             You know, at one time I was teaching people in this

          3        state and I would be interested -- it would be interesting

          4        to know today how many people under 40 or under 50 can't

          5        read or write but decide they need an education whether

          6        they are 40.  That's unfortunate, but it is real.

          7             I think with this type of -- as we talked about the

          8        economic side and the revenues necessary -- I really, as

          9        much as we want everyone to have a good education, do we

         10        want to bend over backwards for them?  I see that that

         11        opens up all kinds of areas of litigation for a large

         12        percentage of people that are dissatisfied with what their

         13        children are getting in school.

         14             If we had the best school system in the United States

         15        for all of our youngsters we might not have quite the same

         16        concerns.  However, we have been told that we don't have

         17        the number one school system in the United States, just

         18        based upon what we know from K through 12.

         19             And what this would open up, I think it is Pandora's

         20        box that we would open up, as much as I want all of our

         21        children to have a fine education and our public to have a

         22        fine education.  But I think when we use the terms

         23        "fundamental rights," we are opening Pandora's box beyond

         24        all of our, we just can't even comprehend the problems

         25        that would be upon our state.  As much as I want to



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          1        endorse education and work for education, I just can't

          2        support this proposal and I just don't know how to address

          3        your concerns and your issues.

          4             But I don't think this is the right vehicle for what

          5        we are attempting to accomplish.

          6             CHAIRMAN DOUGLASS:  Commissioner Freidin?

          7             COMMISSIONER FREIDIN:  As we leave the 20th century

          8        and move into the 21st century, there is an increasing

          9        deficit in the education that we are providing our

         10        children.  It has gotten worse and worse and worse over

         11        the last decade.  And for whatever reason, I am not a

         12        student of legislative politics, I have no idea what goes

         13        on here when we are not here in terms of education.

         14             I don't know what all the exigencies are and I don't

         15        know what all the concerns are other than generally I know

         16        that there is always a crunch on money.  But for whatever

         17        reason, education has not been given the priority that it

         18        should be given.  As we go into the 21st century, we have

         19        to change our priorities.  There has to be a clear

         20        statement of what we believe is really important.

         21             And this, folks, is as important as it gets.  I think

         22        that the need for good, solid, strong education is going

         23        to be much greater as technology changes, industry

         24        changes, and the things people do in order to get by in

         25        the world are going to become much more dependent on



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          1        having a good education.

          2             This is truly a proposal for an amendment for the

          3        future.  And without it, our state is in deep trouble and

          4        I -- I'm simply, without dealing with it at this moment

          5        and without really addressing the issues that some of you

          6        raise which are I think valid issues in terms of whether

          7        it applies to a child and the exact language and wherever

          8        we put in the word "adequate" and all that, but without

          9        dealing with those issues, I would speak very strongly in

         10        favor of this commission offering to the public to put

         11        this into the Constitution.

         12             CHAIRMAN DOUGLASS:  Commissioner Riley?

         13             COMMISSIONER RILEY:  I have an amendment that I'd

         14        like to present which will clarify this sentence with what

         15        we passed yesterday in terms of adequate provision.  And

         16        it should be on everyone's desk which is to take out

         17        "ample" and to put back in "adequate."

         18             CHAIRMAN DOUGLASS:  All right.  The amendment is on

         19        the desk by Commissioner Riley.  Would you read the

         20        amendment, please?

         21             READING CLERK:  By Commissioner Riley on Page 1, Line

         22        17, delete the words "ample," "adequate," (sic) and insert

         23        "adequate."

         24             CHAIRMAN DOUGLASS:  All right.  Commissioner Riley.

         25        Any discussion?



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          1             COMMISSIONER RILEY:  Well just to remind the members

          2        that 23 out of 24 of us yesterday adopted a proposal

          3        defining adequate provision.  I think this brings that in

          4        line with that.  And when the time comes after this, I

          5        would like to speak towards the entire amendment.

          6             CHAIRMAN DOUGLASS:  If we adopt your amendment what

          7        will be --

          8             COMMISSIONER RILEY:  If this is adopted, it will, in

          9        fact, bring into alignment what we already passed

         10        yesterday because it is a little confusing if yesterday we

         11        passed -- in quotes it says "adequate provision" and

         12        defines it and yet adequate provision as it is changed

         13        here, is not here.

         14             CHAIRMAN DOUGLASS:  So my question is this, which I

         15        want everybody to -- if your amendment is adopted, we will

         16        be voting on whether or not we approve going to the people

         17        on this fundamental education to fundamental right for

         18        everybody secondary and whatever it says.  That will be

         19        the issue that we will wind up voting on after your

         20        amendment?

         21             COMMISSIONER RILEY:  Correct.  Yes.  What my

         22        amendment does --

         23             CHAIRMAN DOUGLASS:  So it goes much further than our

         24        amendment yesterday -- our proposal yesterday?

         25             COMMISSIONER RILEY:  Not my amendment.



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          1             CHAIRMAN DOUGLASS:  No, no, no.  But I mean after

          2        your amendment is adopted it's an entirely different

          3        thing.

          4             COMMISSIONER RILEY:  Yes.

          5             CHAIRMAN DOUGLASS:  In other words, we are going to

          6        the fundamental right issue if we adopt your amendment?

          7             COMMISSIONER RILEY:  I think you are clarifying

          8        adequate provision as it has already been accepted as a

          9        proposal --

         10             CHAIRMAN DOUGLASS:  That's your amendment.

         11             COMMISSIONER RILEY:  -- if you take my amendment.

         12             CHAIRMAN DOUGLASS:  Okay.  All that favor of the

         13        amendment say aye.  Opposed like sign.

         14             (Verbal vote taken.)

         15             CHAIRMAN DOUGLASS:  It is carried.  Now, Commissioner

         16        Brochin, you heard what I said and I want to do this

         17        because I want to be sure we are all on the same page.  As

         18        I understand it, what is different about this from what we

         19        have already agreed to is that it goes to the issue of

         20        whether or not education is a fundamental right for

         21        everybody in these areas that are defined in your

         22        proposal; is that the issue that we have before us?

         23             COMMISSIONER BROCHIN:  That is the issue we have

         24        before us although I think Commissioner Lowndes is going

         25        to offer an amendment to limit that fundamental right to



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          1        children.

          2             CHAIRMAN DOUGLASS:  Okay.  But we are dealing with

          3        fundamental right instead of adequate at this point?

          4             COMMISSIONER BROCHIN:  Right.

          5             CHAIRMAN DOUGLASS:  Now, you may proceed.

          6             COMMISSIONER BROCHIN:  Well, I'm going to proceed to

          7        respond a little bit to Commissioner Morsani's comments

          8        while Commissioner Lowndes is preparing that amendment.

          9             I want to put this in a constitutional context

         10        because we are really trying to look at the constitutional

         11        aspect of it.  And I think that statement in the analysis

         12        that this proposal somehow shifts responsibility from one

         13        branch of government to the other is absolutely incorrect.

         14             Constitutionally speaking, at least from what I have

         15        read, there is four categories that you can have in your

         16        Constitution when you talk about education and it deals

         17        with various levels of constitutional scrutiny, if you

         18        will, in terms of education.

         19             And I want to review them with you.  Category 1 means

         20        a system of free public schools will be provided.  That's

         21        Category 1.  That's the lowest category and that's the

         22        category that Florida is in, the lowest.  Category 2

         23        imposes a minimum standard of quality that the State must

         24        provide.

         25             Category 3 requires a, quote, stronger and more



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          1        specific education mandate and purpose in its preamble.

          2        Category 4 imposes a maximum duty on the State to provide

          3        an education.

          4             What this does, it takes Florida out of the depth of

          5        a Category 1 and raises it to a Category 4.  What it does

          6        is tell the people of this state, when they get a chance

          7        to vote on this, that we want to raise the constitutional

          8        level that in our document we want education to go from

          9        the lowest level that it is afforded, constitutional

         10        protection, and bring it to the highest.

         11             And it is not the judiciary's responsibility and it's

         12        not just the legislative's responsibility, and it's not

         13        just the executive branch's responsibility.  It is going

         14        to be the entire three branches of government's

         15        responsibility to meet that mandate and meet that

         16        statement of policy that will say that education imposes a

         17        maximum duty on the State to provide for its children.

         18             And so there may be shifting among the three branches

         19        to ensure this paramount duty, but it doesn't shift it to

         20        the judges to decide how much money.  In fact, that first

         21        decision in terms of how much to spend and where lies with

         22        the Legislature.  It would be their duty and

         23        responsibility in following the constitutional mandate to

         24        provide the maximum duty on them to provide this high

         25        quality education.  And I think the time has come for us



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          1        to raise it to that level.

          2             I hesitated to go forward today with this because I

          3        really wanted to bring to bear here a comparison of other

          4        states.  You know, one of the questions we always ask

          5        ourselves in considering any constitutional proposals is

          6        what other states do.  And the reason we do that is not

          7        because we necessarily want to follow them, but we want to

          8        get a sense of where we are, where do we stand with our 49

          9        other brethren states out there in terms of our values and

         10        in terms of the things that we want to promote.  And

         11        today, we stand at the bottom.  And I hope this is going

         12        to make us stand up with most of the other states in

         13        declaring this a fundamental duty.

         14             So there is a constitutional context that I want to

         15        put in this because that's what we are trying to establish

         16        with this.

         17             CHAIRMAN DOUGLASS:  Commissioner Morsani?

         18             COMMISSIONER MORSANI:  Well, I really appreciate your

         19        explanation and I don't disagree with the intent, but I

         20        have, you know, I'm sorry that I am controversial at times

         21        on legal issues, but I've been there and you take one

         22        word, ladies and gentlemen, and you-all as attorneys you

         23        change the damn context whenever you go to court.

         24             (Laughter.)

         25             That's what you do, doggone it, that's what happens.



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          1        And that scares the hell out of me.  Now that's the reason

          2        I have a problem with fundamental rights.  I love your

          3        fourth idea.  And I can endorse that.  But I can't endorse

          4        it when I might be in court tomorrow morning after they

          5        pass this to go over the fundamental rights because we

          6        didn't do something and that scares me and I don't know

          7        how to get over that, Commissioner, because I want to get

          8        over it.  I agree with you, but it just scares the heck

          9        out of me.

         10             CHAIRMAN DOUGLASS:  Twenty years ago, Commissioner

         11        Morsani, I might have said, you know, you shouldn't have

         12        used those words.  But now that's prime-time words on

         13        television so it's okay.

         14             All right.  Commissioner Riley?

         15             COMMISSIONER RILEY:  Commissioners, I'd like to speak

         16        strongly in favor of this.  I am hardly in favor of taking

         17        an education that is in Category 1 and moving it to the

         18        top and promising to the children of our state that they

         19        get the adequate provision and the education that we

         20        passed on yesterday.

         21             I think we need to look at our history and remember

         22        what Commissioner Brochin said which is in 1868 we looked

         23        at the State as a place that could and should provide a

         24        paramount education and that was the duty of the State to

         25        put it out there for the children of this state.



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          1             How can we bring these children into the world and

          2        not promise them that we will teach them and that the

          3        State will provide the opportunity for them to learn and

          4        to grow and to go well prepared out into the world?  And

          5        we don't do that.  We have, all of us, children who go off

          6        to other states to school perhaps, I know I do.

          7             My children all went to public school in the state of

          8        Florida.  And I am lucky that they got excellent teachers.

          9        But they were not as prepared when they went off to the

         10        universities in other states as some of their students in

         11        the same classes because of the education that they got.

         12        And I think we can do better.

         13             Commissioner Marshall yesterday presented us with

         14        some figures over the last 20, 25 years of our educational

         15        system in the state of Florida and it was appalling that

         16        the figures have gotten worse.  The year when the 50

         17        states, the graduation rate in the state of Florida,

         18        Florida was literally at the bottom.  It was the bottom.

         19        There was no state that was worse than the state of

         20        Florida.

         21             And we have to do better for our children.  I see

         22        nothing wrong with promising to our children a fundamental

         23        right that we will educate them.  I would be proud to have

         24        a Constitution that raises our educational promise to our

         25        children higher than it is now and higher than it is in



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          1        other states.  And I encourage you to support the children

          2        and their education and their future and I think we do

          3        that with this proposal.

          4             CHAIRMAN DOUGLASS:  Commissioner Marshall?

          5             COMMISSIONER MARSHALL:  Thank you, Mr. Chairman.

          6        Much of the debate that I have heard in the last 15

          7        minutes or so seems to be centered on the need to improve

          8        an inadequate school system.  Acknowledgement that we have

          9        a not very good school system in Florida and that we ought

         10        to take extraordinary steps to improve it.  Is there any

         11        doubt in anybody's mind about that among these

         12        commissioners?  I mean, I think we all acknowledge that.

         13        And I'm inclined to say at the risk of sounding impatient,

         14        let's go on to something else.  Of course we have a poor

         15        school system and of course we must do something to

         16        improve it.

         17             There are moments when I wish I were a lawyer,

         18        Mr. Chairman, and this body.  Not often, you understand,

         19        but occasionally, because I would like to have a legal

         20        mind to do such things as interpret the meaning of

         21        fundamental right.  So my question first is, can anybody

         22        answer this, is there a definition that I as a legislator,

         23        if I were one, might apply to the term "fundamental

         24        right"?  I am not sure there is.  Or if there is, if you

         25        have explained what it is, I have missed it.



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          1             So if there is no precise definition of fundamental

          2        right then I assume it must go to the courts and that's

          3        the part of this proposal that really frightens me.  I

          4        understand the balance of powers and I think the courts

          5        have an important role to play in education as they do

          6        throughout our society but there's been some egregious

          7        examples of court involvement in running schools and

          8        taking over the decision-making in school systems, they

          9        are downright frightening.  And the most egregious is the

         10        one in Kansas City.

         11             And if you haven't read about that one -- I suspect

         12        many of you have -- it's a case where a federal judge, a

         13        judge in a federal court, took over the school system and

         14        told them, told the authorities the number of dollars they

         15        would have to spend to achieve what he perceived to be an

         16        appropriate goal for an adequate school system and they

         17        spent those dollars and I won't now spell out the tragic

         18        history of that account but it wasn't a happy story.

         19             I don't think we want to do any more than we must do

         20        to have the courts involved in education.  Now maybe this

         21        will do this, Commissioner Brochin, I don't know.  But

         22        unless somebody can tell me what I as a legislator would

         23        do when I see that my responsibility is to ensure the

         24        children of Florida a fundamental right, you know, my

         25        response is to that is that I've been a legislator for



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          1        several years and I'm conscientious and intelligent about

          2        educational matters, you bet I'm going to guarantee our

          3        students a fundamental right as I have been doing all

          4        these years unless you can tell me some definition of

          5        fundamental right that I have not met.

          6             And if that means -- if providing that definition

          7        means going to the courts, then I'm opposed.  And unless

          8        somebody can answer that question to my satisfaction, I'm

          9        opposed to this proposal.  Thank you.

         10             CHAIRMAN DOUGLASS:  Commissioner Barkdull?

         11             COMMISSIONER BARKDULL:  Commissioner Marshall, would

         12        you yield for a question?

         13             COMMISSIONER MARSHALL:  Yes, sir.

         14             COMMISSIONER BARKDULL:  Would you believe me, sir,

         15        that I picked up Forbes Magazine Tuesday night and saw

         16        where three states had got their educational systems into

         17        the courts, now they have taken over to run them?

         18             COMMISSIONER MARSHALL:  I would believe that,

         19        unhappily, sir.

         20             CHAIRMAN DOUGLASS:  Commissioner Langley?

         21             COMMISSIONER LANGLEY:  Unlike Commissioner Marshall,

         22        sometimes I wish I wasn't a lawyer because then I wouldn't

         23        see all of the depths and confusion of some of these

         24        amendments.  But basically, and I think the consensus of

         25        the other lawyers here with whom I have spoken, a



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          1        fundamental right is one that the State must show a

          2        compelling state interest before it can be denied you.

          3        Okay.  You have the right of free speech, you don't have

          4        the right to yell "fire" in a crowded theater.  There must

          5        be some compelling state interest.  I don't think that

          6        finances is a compelling state interest.

          7             And how these, I fail to agree with these proponents

          8        who say this would not end up in court.  Again, you have

          9        to let the rubber hit the road.  The rubber hits the road

         10        because Commissioner Riley doesn't feel that her child in

         11        the second grade is getting adequate teaching, they are

         12        not bringing home any homework, there's a bunch of

         13        confusion at school and, you know, she just doesn't feel

         14        like that child has been adequately provided for.  What

         15        does she do?  First she goes to the school board and they

         16        say, Well, that's too bad, we don't have the money to do

         17        it.  So then she files a lawsuit, it is the only way.

         18             Then she files a lawsuit and she tells the court,

         19        federal or state or whatever, and says, My child has a

         20        fundamental right to this education.  Look what was just

         21        passed in 1998.  And she is not getting that.

         22             Then the court would take testimony, Well what is --

         23        and we try to define adequate, the court would have to

         24        define that, we tried that yesterday by inserting a very

         25        clearly understood definition, high quality.  Now, what



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          1        does high quality mean?  I don't know.  Maybe you do.  We

          2        all have our ideas about what high quality is but nobody

          3        really knows and so then the court would take expert

          4        testimony from all of the Ph.Ds and what have you all

          5        around the world and decide what high quality education

          6        is.

          7             And if that child needs a $20 an hour tutor three

          8        days a week, two hours a day, that's what she gets.  And

          9        if the county can't afford that, then the court says, You

         10        assess whatever taxes are necessary to fund that.  That's

         11        how it happens.

         12             CHAIRMAN DOUGLASS:  Commissioner Riley rises for a

         13        question.

         14             COMMISSIONER RILEY:  I would like to ask a question

         15        of Commissioner Langley.  Can you tell me then, since what

         16        we have is what we are going by and this is not going to

         17        land us in the courts, what adequate provision is since it

         18        is not defined in the Constitution?  And, thank God, I

         19        don't have a second grader anymore.  But cannot, given

         20        that, any parent try to go through and decide on their own

         21        what adequate is and if they don't like the definition

         22        take it to the courts now?

         23             COMMISSIONER LANGLEY:  If I'm not mistaken, that was

         24        the whole point of the adequacy suit where 30-some

         25        counties sued the State and said, You are not adequately



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          1        funding our public school system.  And the court basically

          2        said, Well, that's really legislative and it's up to them

          3        to provide that and, you know, this is not at this time a

          4        level of a fundamental right that we are going to

          5        interfere with, basically.

          6             The answer to me, you know, we have a -- we are doing

          7        all we can to reform the election process and I go along

          8        with a lot of it.  I have been on both sides of this

          9        issue.  But that's where the answer is.  By golly, if the

         10        Legislature isn't funding it right, vote for

         11        Representatives and Senators who will.  That's what it is

         12        all about.  They say right now in all the polls education

         13        is the number one concern of the people of Florida.  By

         14        golly, make them commit.  What are you going to do?  Are

         15        you going to put more money in education, Prospective

         16        Senator, or are you not?  But that's our answer.

         17             But at least we can vote in for those people to put

         18        them in and we can vote against them to put them out.  So

         19        you can't do that with Judge Kogan.

         20             COMMISSIONER RILEY:  Let me ask one more question,

         21        having given me the definition from a legal perspective,

         22        of fundamental right meaning compelling state interest.

         23        Do we not have a compelling state interest to educate our

         24        children and if we have that, why not make it clearer in

         25        putting this provision in this sentence in the




                                                                          289

          1        Constitution?

          2             COMMISSIONER LANGLEY:  If you want to turn over the

          3        funding of education to the courts, do it, that is what

          4        that would do.  I don't want to do that.  I would rather

          5        go fuss at my Senator or my Representative or whatever

          6        rather than depend on some judge who is never going to

          7        answer to me and come back with a court-ordered taxation,

          8        that's got to be the worst kind.

          9             CHAIRMAN DOUGLASS:  Commissioner Evans-Jones?

         10             COMMISSIONER EVANS-JONES:  Commissioner Langley, it

         11        is 5:00 and I'm kind of tired.  I think all of us older

         12        folks kind of get that way at times.  But anyway, what I

         13        want to know is did you vote for the measure yesterday on

         14        education?

         15             (Off-the-record comment by Commissioner Langley.)

         16             COMMISSIONER EVANS-JONES:  If you had been here would

         17        you have?

         18             (Off-the-record comment by Commissioner Langley.)

         19             COMMISSIONER EVANS-JONES:  Well, I guess what I'm

         20        trying to find out then from somebody is it was almost

         21        unanimous if I remember, I think one vote, wasn't it,

         22        Commissioner Riley?

         23             COMMISSIONER RILEY:  Three to 1.  And everyone who

         24        was here, commissioner Langley was not here, everyone

         25        voted for it except Commissioner Evans.



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          1             COMMISSIONER EVANS-JONES:  Well, I guess what I want

          2        somebody to explain to me is what's the difference between

          3        what we did yesterday and I know this is stronger, I mean,

          4        this is a fundamental right.  Did what we do yesterday,

          5        would that create as many problems with the court system

          6        as what they are saying today?  Somebody help me.

          7             CHAIRMAN DOUGLASS:  I think everybody wants to answer

          8        that.  But the answer is, if you adopt this, it goes much

          9        further than what we did because what we did was -- as a

         10        statement of the public policy of the state is -- and then

         11        went forward with what was said.  And it was specifically

         12        understood that this would not make that a fundamental

         13        right which would ensure that each person had that right

         14        and that was brought out in the debate that it would, in

         15        effect, put the Legislature on notice that the people

         16        adopted that as the fundamental policy, what was this that

         17        proposal.

         18             And the reason I asked the question I did earlier is

         19        because this one now says that education is a fundamental

         20        right.  And there is a significant legal difference

         21        between that and what we have now and what we would have

         22        under the other amendment.  And Commissioner Langley, I

         23        think, has made that point very well, that the -- when you

         24        say it is a fundamental right, when you get to court, you

         25        have an entirely different issue than where that's not the



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          1        case.

          2             And so far the courts in Florida have not held that

          3        education is a fundamental right.  Now they had an issue

          4        about whether or not there was adequate funding, which was

          5        a 4-3 decision that they've deferred to the Legislature.

          6        If I'm wrong, I'll certainly be happy to be corrected and

          7        I'm sure the lawyers can correct me.  Who wants to try?

          8             COMMISSIONER EVANS-JONES:  I'm not a lawyer, I'm

          9        still asking questions.

         10             CHAIRMAN DOUGLASS:  I'll let somebody else answer the

         11        rest of them.

         12             COMMISSIONER EVANS-JONES:  I think, I know for a

         13        fact, everybody in this room is sincerely concerned with

         14        the education system in Florida as Commissioner Marshall

         15        has said.  And I think we are deeply troubled with what we

         16        have.  I don't want the courts to run the school system

         17        any more than some of these, Commissioner Langley and

         18        Commissioner Morsani.

         19             I do want the Legislature and the public to know that

         20        we do care and we are not satisfied with the he education

         21        that we are getting.  So I guess what I'm saying is I

         22        don't know which is the better way for us to go and I

         23        think yesterday, you know, maybe was the best.  I don't

         24        know.  I'm confused.

         25             CHAIRMAN DOUGLASS:  Excuse me, Commissioner Sundberg,



                                                                          292

          1        I have overlooked you long enough.

          2             COMMISSIONER SUNDBERG:  I'm pretty hard to overlook.

          3        Mr. Chairman, and I'm going to try to put this in

          4        perspective, what does fundamental right mean.  It seems

          5        to me it has this significance.  First of all, this body,

          6        by putting this on the ballot, is saying to the people of

          7        Florida, Do you believe that the education of our children

          8        should be a fundamental right?  Yes.  One that if it is

          9        not fulfilled is enforceable in a court of law?

         10             Now that seems to be a bogeyman around here all of a

         11        sudden.  But, you know, that's a pretty good concept that

         12        when people have rights that they are being deprived of

         13        that you have the ability to go to a court somewhere and

         14        have that right enforced.

         15             But, and this goes back to, well, what's -- you know,

         16        you are going to force the Legislature, and if you don't

         17        like the legislators who aren't properly funding it, throw

         18        them out.

         19             First of all, if the people adopt this language, they

         20        have said to each and every legislator because, by the

         21        way, legislators take an oath just like judges do to

         22        uphold the Constitution.  And if the Constitution says,

         23        Education is a fundamental right, and so when a legislator

         24        comes to this house and the one down the hall, he or she

         25        knows that of all the competing demands, and there are



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          1        lots of them, and legislators have to deal every session

          2        with, you know, all sorts, criminal justice system, roads,

          3        the whole thing.

          4             But what it tells them is you have to give education

          5        when you are dealing with these competing demands, you

          6        have to give education a priority because the people of

          7        this state have said, like they said in 1968, We are

          8        rededicating ourselves to having an educational system

          9        that is fundamental in our concept of the rights that

         10        people have in this state.

         11             And I want to mention, if I may, this thing about

         12        well, you are going, there has been -- would you believe

         13        there is three lawsuits, would you, whatever.  I don't

         14        know if it was prescience, foresight, or what, but the

         15        people -- or actually, the officials of the state of

         16        Florida many years ago when even you and I were young

         17        fellows, Stanley, enacted the Minimum Foundation Program

         18        in Florida.

         19             As a result of that, you will notice we have not had

         20        any kinds of lawsuits like they have had in Texas and

         21        Kansas City and other places because you know what those

         22        lawsuits were about?  Those lawsuits said, Hey, the more

         23        prosperous school distinct sitting over here where the

         24        rich folks live have this very good school system.  This

         25        school district over here doesn't have that kind of school



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          1        system because they have districted all the poor folks in

          2        that district.

          3             That doesn't happen in Florida because the Minimum

          4        Foundation Program that we have says when the local effort

          5        leads to disparity, there is the contribution, significant

          6        contribution, by state taxes to support the school system.

          7             That's why we are not -- I mean, those are the kinds

          8        of lawsuits that you read about in the paper is because

          9        the federal courts have been called about to say these

         10        people are being deprived of equal protection of the law.

         11        They have a lousy school system because they are poor and

         12        they are districted into a poor district.  They're rich

         13        and they have a better one.  And what the district courts

         14        are doing, what the federal courts are doing, is saying,

         15        Okay, you have got to do what, in effect, our minimum

         16        foundation does now, is to say, You are going to support

         17        this poor system so it is on a parity with the richer

         18        system.

         19             So I suggest to you we are not talking about turning

         20        the education system of the state over to the courts.  The

         21        courts won't have anything to do with the curriculum, and

         22        how will the courts decide this?  They will decide like

         23        they decide other issues where you are talking about

         24        adequate, you know.  They are going to take testimony and

         25        there will be people who will come in, presumably experts



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          1        who will offer that kind of testimony.  You are not

          2        talking about them taking over a school system.

          3             And Commissioner Morsani, and I understand the

          4        concerns, the fiscal concerns, are we giving somebody a

          5        blank check and, you know, can we afford this?  Well, I

          6        suggest to you that we can't afford not to.  Because in

          7        today's world, unless our children who then become our

          8        adults in this state, are able to compete in the market,

          9        as industry progresses in the technological way it has,

         10        and unless companies, corporations are convinced that

         11        first of all they are going to have an intelligent labor

         12        force, and, secondly, they are convinced that their

         13        executives and their workers are convinced that their

         14        children are going to get an adequate education in this

         15        state, they are not going to come here and build the

         16        plants and enhance the economy of this state.  We can't

         17        afford not to do precisely what you are being asked to do

         18        here.

         19             CHAIRMAN DOUGLASS:  Commissioner Thompson.

         20             COMISSIONER THOMPSON:  Yes, sir, Mr. Chairman, and

         21        members.  Let me just take a minute and tell you why I'm

         22        going to vote against this proposal.  I certainly was in

         23        favor of the proposal of Mr. Mills yesterday as amended

         24        because I think it's a smart thing for us to do and

         25        particularly based on the public hearings that we've had



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          1        and the concerns that we've had to express on no uncertain

          2        terms and to give the people the opportunity to express on

          3        no uncertain terms that education is a priority in our

          4        state.

          5             When I served in the Legislature, and I served there

          6        12 years, I guess you could say -- and I said this in

          7        interviews after I got out -- dealing with education was

          8        the most frustrating thing that I did while I was there.

          9        And it's the thing that I don't think me and the people

         10        that I worked with had very much impact on, I'll be honest

         11        with you, especially K through 12 education.  I think we

         12        probably had a better impact on higher education but it's

         13        easier because it's so much smaller and there's not nearly

         14        the problems involved.

         15             And I kept harking them back to a conversation I had

         16        with an older gentleman who was the superintendent of

         17        public construction in one of my counties when I first

         18        ran.  I went in to kind of get his blessing to, you know,

         19        to run and to see if I could get his support.

         20             And one of the things that he told me is, he said,

         21        Remember this, this is all you'll ever hear from the

         22        education community and I'm part of it.  Nothing will

         23        solve our problems but more money and bigger buildings.

         24        And from that day forward, every session of the Florida

         25        Legislature, that's all I ever saw or heard from the



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          1        education community.  If you'll just give us more money

          2        and bigger buildings, we'll solve all the problems that

          3        are coming at us.

          4             And during that time, I was a participant, and I'll

          5        plead guilty to this, I was a participant in raising a lot

          6        of tax dollars and infusing it into the public education

          7        system.  And at the end of my career there, I don't

          8        believe that we had made an awful lot of difference even

          9        though we tried real hard and we tried to -- we began some

         10        programs that I hope over the long-range will help.

         11             The problem is that just an infusion of money into

         12        education is not going to help it.  And we found that out

         13        as we've moved along through there and we've tried some

         14        different things.  Now, it's good to say that, you know,

         15        you may not go to court.  It's good to say that if you do,

         16        you know, it may not be all that bad.  But there is one

         17        thing nobody has said and that is all these lawsuits are

         18        not about -- they don't sue you to say you ought to pass

         19        merit pay so that a teacher is judged and paid based on

         20        what he or she gets as a result.

         21             In other words, when that fifth grade class starts,

         22        they take a series of standard tests.  When they finish

         23        the fifth grade, they take a series of standard tests, and

         24        if they don't do what they ought to do, the teacher gets

         25        so much money, nobody ever sues about that.  Nobody ever



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          1        sues about anything but money, putting more money in the

          2        system.

          3             And what happens is, as one of my colleagues in the

          4        Legislature often told us is, the money then goes to, by

          5        and large, the salaries of people who have been teaching

          6        10 years, 15 years, 20 years.  And so you're going to pay

          7        them more money to do exactly what they've been doing.

          8        None of them want to take a test as far as competency in

          9        their own areas.  And don't misunderstand me, I'm not

         10        against teachers by any stretch.  I am telling you what I

         11        received and the information that I received when I was in

         12        public office.

         13             So you never get a lawsuit about that.  Nobody ever

         14        sues in the federal court to say, Florida, you're

         15        inadequate because you don't test your teachers properly.

         16        They don't ever do that.  They sue to get more money and

         17        bigger buildings.  That's what they sue about.

         18             And so the question here is, do you think by moving

         19        from the Mills' amendment that we all worked up and said,

         20        This is a real strong statement, the public is going to

         21        make a very strong statement, does it make a difference if

         22        you move to a fundamental right?  If it doesn't, it ought

         23        not do it.  If it does and it's going to put us in court

         24        and the controversy is going to be more money or bigger

         25        buildings, I submit to you we ought not to do it and I



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          1        don't want to take the chance and I don't think you do

          2        either.  Thank you.

          3             CHAIRMAN DOUGLASS:  All right.  Any further

          4        discussion?  Commissioner Lowndes?

          5             COMMISSIONER LOWNDES:  I have an amendment on the

          6        desk which I'd like to propose.

          7             CHAIRMAN DOUGLASS:  Amendment on the desk by

          8        Commissioner Lowndes.  Read the amendment.

          9             READING CLERK:  By Commissioner Lowndes on Page 1,

         10        Lines 13 and 14, delete "each resident" of this state and

         11        insert "each child" in the state.

         12             CHAIRMAN DOUGLASS:  All right.  Commissioner Lowndes?

         13             COMMISSIONER LOWNDES:  This amendment simply limits

         14        the application of this proposed decision of the

         15        Constitution to children and not to anybody else but

         16        children.

         17             CHAIRMAN DOUGLASS:  Very well.  All in favor of the

         18        amendment say aye.  Opposed, like sign.

         19             (Verbal vote taken.)

         20             CHAIRMAN DOUGLASS:  It is an amendment.  The

         21        amendment carries.  Now we revert to the proposal as

         22        amended.  I think we've had plenty of debate unless

         23        somebody wants to close.  Commissioner -- which one of you

         24        wants to close?

         25             Commissioner Brochin?



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          1             COMMISSIONER BROCHIN:  You know, we, two hours ago,

          2        talked about public financing and the question was asked,

          3        How are we going to enforce that?  I think you asked that,

          4        Commissioner Barkdull.  Commissioner Connor said, Well,

          5        we'll go to the courts.  We passed amendment after

          6        amendment after amendment in this chamber where the remedy

          7        is to go to the courts.  And now, when it gets to

          8        education, we don't want to go there.  This is not an

          9        amendment about funding.

         10             This is an amendment that goes to the people of this

         11        state to say that education of our children is the most

         12        high priority we can place and it is something we want

         13        stated in our document, in our Constitution, that makes it

         14        so every Legislature, every judge, every governor knows it

         15        and will enforce it.  And if they don't, you work it out

         16        until they do and we demand that as a people.  We demand

         17        that from our state.

         18             Commissioner Connor spoke eloquently when he talked

         19        about partial-birth abortions.  He asked us to look inside

         20        ourselves in terms of our values and what is important.

         21        And I can't think of anything more important than a

         22        child's education.  And if we're fearful of putting that

         23        in a document that constitutes us, then we haven't clearly

         24        articulated our values.  If it opens up Pandora's box, let

         25        it open.  If it opens up litigation, let it be opened.



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          1        But there cannot be anything more fundamental to us than

          2        the education of our people.

          3             Thomas Jefferson said -- if I can find his quote --

          4        If a nation expects to be ignorant and free, it expects

          5        what never was and never will be.  And the time has come,

          6        I suggest, to put your fears aside about a fundamental

          7        right.  I articulated for you all of the fundamental

          8        rights that exist in our Constitution and the State has

          9        done just fine.  Litigation has not brought us down.

         10             And this will not bring us down, it will make us a

         11        better state in our Constitution when we say and we tell

         12        every elected, appointed official that our education is

         13        the most fundamental right to our children.  And when we

         14        go forward in the next 20 years with all our proposals

         15        about what to do with the educational system, we can be

         16        able to say that we all go in this together and that every

         17        child will have an equal opportunity to pursue that

         18        education because he has or she has this very basic and

         19        fundamental right.

         20             So I don't shy away from the fear of what this will

         21        bring.  I actually believe this is what the people want.

         22        And when you give them an opportunity to put this in that

         23        document, which is constitutional in nature, I'm very

         24        convinced they are going to approve it.  So I would urge

         25        you to vote for it.







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          1             CHAIRMAN DOUGLASS:  All right.  Unlock the machine.

          2        Let's vote.  Has everybody voted?

          3             (Vote taken and recorded electronically.)

          4             CHAIRMAN DOUGLASS:  Unlock the machine.

          5             READING CLERK:  Fourteen yeas, 9 nays, Mr. Chairman.

          6             CHAIRMAN DOUGLASS:  The next proposal is No. 74 by

          7        Commissioner Langley.  Would you read it, please?

          8             READING CLERK:  Proposal 74, a proposal to revise

          9        Article V, Section 10, Florida Constitution; providing for

         10        the election of justices of the Supreme Court and judges

         11        of a district court of appeal.  Providing for public

         12        financing for judicial elections.

         13             CHAIRMAN DOUGLASS:  Commissioner Langley?

         14             COMMISSIONER LANGLEY:  I'd like to take the privilege

         15        of withdrawing that from further consideration.

         16             CHAIRMAN DOUGLASS:  Without objection, it is

         17        withdrawn.  The next proposal is 173 by Commissioner

         18        Riley.  Please read it, please.

         19             READING CLERK:  Committee substitute for Proposal

         20        No. 173, a proposal to revise Article VIII, Section 1,

         21        Florida Constitution; authorizing counties to elect county

         22        officers in nonpartisan elections, providing procedures.

         23             CHAIRMAN DOUGLASS:  Commissioner Riley?

         24             COMMISSIONER RILEY:  There should be an amendment to

         25        this.  Is this what is being passed out now?



                                                                          303

          1             CHAIRMAN DOUGLASS:  Amendment on the desk?

          2             COMMISSIONER RILEY:  There is an amendment that's

          3        already been done.  I don't know if it's been passed out

          4        or not.

          5             CHAIRMAN DOUGLASS:  Yes, it's being passed out I

          6        think.

          7             COMMISSIONER RILEY:  And as they are passing it out,

          8        I'll explain what the amendment is which is to limit

          9        this --

         10             CHAIRMAN DOUGLASS:  You move the amendment that's on

         11        the desk?

         12             COMMISSIONER RILEY:  I do.

         13             CHAIRMAN DOUGLASS:  All right.  Can you read the

         14        amendment?

         15             READING CLERK:  It's not on the desk, Mr. Chairman.

         16             CHAIRMAN DOUGLASS:  Oh, what you're passing out is

         17        not the amendment?  Oh, this is the actual committee

         18        substitute that's being passed out and the amendment is to

         19        this; is that correct, Commissioner Riley?

         20             (Pause.)

         21             CHAIRMAN DOUGLASS:  You've got the amendment.  Read

         22        the amendment.  This first thing I've got is the committee

         23        substitute which is what we're acting on.  And now there's

         24        an amendment on the desk which I've asked to be read.

         25        Read the amendment by Commissioner Riley.



                                                                          304

          1             READING CLERK:  By Commissioner Riley on Page 2, Line

          2        7 and 8, delete those lines and insert, Paragraph 2, any

          3        county may exercise the option to elect the county

          4        officers enumerated in this subsection in a nonpartisan

          5        election by either the filing.

          6             CHAIRMAN DOUGLASS:  All right.  Proceed on the

          7        amendment.

          8             COMMISSIONER RILEY:  To clarify the amendment, what

          9        this means is, that this would only apply to county

         10        offices of sheriff, tax collector, property appraiser,

         11        supervisor of elections, and clerk of county court.  It

         12        does not apply to county commissioners.  It does not apply

         13        to the school board, only those offices.

         14             CHAIRMAN DOUGLASS:  All right.  Proceed with your --

         15        oh, all in favor of the amendment say aye.  Opposed.

         16             (Verbal vote taken.)

         17             CHAIRMAN DOUGLASS:  Amendment is adopted now to the

         18        proposal as amended.

         19             COMMISSIONER RILEY:  The proposal gives counties an

         20        option at the election of the voters in that county to

         21        make these particular offices nonpartisan.  It's a choice

         22        of the voters.  It can be put on the ballot only under the

         23        two provisions listed in this and this was a public

         24        proposal that was brought to us around the state of

         25        Florida and I would like to see it -- I would like to see



                                                                          305

          1        it passed by this body and give the local electorates an

          2        option to have nonpartisan elections.

          3             CHAIRMAN DOUGLASS:  All right.  Anybody want to be

          4        heard on this?  Commissioner Henderson?

          5             COMMISSIONER HENDERSON:  I guess a question to -- I'm

          6        confused.  Does it or does it -- I guess this is only for

          7        non-charter counties; is that right?

          8             COMMISSIONER RILEY:  That's correct.  Charter

          9        counties, as I understand it, already have this option.  A

         10        majority of the counties in the state of Florida -- and I

         11        don't have the exact numbers, maybe someone here can help

         12        me on that -- the majority of the counties are non-charter

         13        counties.

         14             CHAIRMAN DOUGLASS:  Big majority.

         15             COMMISSIONER HENDERSON:  Most of them are

         16        non-charter.  But most of the people of the state live in

         17        charter counties.  Now does this apply to county

         18        commissioners or not?

         19             COMMISSIONER RILEY:  No.

         20             COMMISSIONER HENDERSON:  Why?

         21             CHAIRMAN DOUGLASS:  She just amended it out.

         22             COMMISSIONER HENDERSON:  Well, I don't understand

         23        why.

         24             CHAIRMAN DOUGLASS:  While you were talking to

         25        Commissioner Langley, she amended out county commissioners



                                                                          306

          1        and the school board and enumerated who was covered, which

          2        basically were the elected county officials like the

          3        sheriff, the clerk and --

          4             COMMISSIONER RILEY:  The constitutional officers is

          5        what I would call them but I don't know if that's a

          6        professional term or not.

          7             COMMISSIONER HENDERSON:  I guess I don't understand

          8        why you would make a distinction between county

          9        commissioners and other constitutional officers for this

         10        purpose.

         11             COMMISSIONER RILEY:  Well, you're welcome to make an

         12        amendment to add them back in, Commissioner Henderson, but

         13        basically I don't want the county commissioners on my

         14        back.  And I have talked to county commissioners, they

         15        prefer, I think, mostly partisan elections.  However, I

         16        don't see a supervisor of election, a sheriff and the

         17        other offices listed here as partisan offices.  It's an

         18        opinion as to whether or not county commissioners should

         19        be in here.  I've chosen to take them out.  Anyone who

         20        would like to make an amendment to put them back in,

         21        they're welcome to.

         22             CHAIRMAN DOUGLASS:  Commissioner Nabors?

         23             COMMISSIONER NABORS:  May I ask a question?

         24             COMMISSIONER RILEY:  Yes, you may.

         25             COMMISSIONER NABORS:  Commissioner Riley, would you



                                                                          307

          1        believe, at least the way I read this, if you had a

          2        charter community, and the charter was silent as to the

          3        nonpartisan election that this would apply to county

          4        charter as well, not that there is anything wrong with

          5        that, but it would.

          6             COMMISSIONER RILEY:  I guess I would read it like

          7        that.  I'm from a non-charter county so I'm not that

          8        familiar with charter counties.  My understanding was that

          9        charter counties had this option.  It might be that some

         10        charters have it and some--

         11             COMMISSIONER NABORS:  Would you believe it depends on

         12        what the charter says?  And if the charter is silent, then

         13        this would apply to a charter county.

         14             COMMISSIONER RILEY:  Yes, it would then.

         15             CHAIRMAN DOUGLAS:  Now, Commissioner Ford-Coates who

         16        is one of those that would be affected.

         17             COMMISSIONER FORD-COATES:  Well, no, actually not

         18        because I'm from a charter county.

         19             CHAIRMAN DOUGLASS:  Very good.  But it's not silent,

         20        right?

         21             COMMISSIONER FORD-COATES:  Right.  Actually, it is

         22        silent.  Commissioner Riley, did you have testimony -- I

         23        guess this is another one of those issues -- I'm kind of

         24        surprised since it's an Article VIII issue that affects

         25        local government, I'm kind of surprised the Local



                                                                          308

          1        Government Committee didn't have a chance to kind of

          2        absorb this.  Was there testimony from local government as

          3        to how the county officers felt about this, et cetera?

          4             COMMISSIONER RILEY:  There was public testimony as we

          5        went around our public hearings around the state on this

          6        issue.  This ended up in elections and I didn't choose to

          7        put it there but that's where it ended up.  So it was

          8        passed out of that committee yesterday.

          9             COMMISSIONER FORD-COATES:  So we really have not

         10        heard from the county officers to see whether or not there

         11        is for some reason -- I mean, I don't think I have a

         12        problem with this but I really haven't given it a lot of

         13        thought and would have appreciated the opportunity for

         14        county officers to at least comment on it so we'd have

         15        kind of a feel to see if there is a negative to it.  I

         16        mean, it seems fairly innocuous.

         17             COMMISSIONER RILEY:  It does to me too, Commissioner.

         18        The only thing I can tell you is that in my own personal

         19        poll, I haven't talked to any elected official or a lot of

         20        folks around the state that I have asked their opinion of,

         21        including elected officials within counties that are in

         22        disagreement with this.  And again, to remind all of you

         23        as you vote on this, this doesn't do it.  It only allows

         24        the counties to put it on the ballot and let the voters

         25        decide if they want to do it.



                                                                          309

          1             CHAIRMAN DOUGLASS:  Commissioner Ford-Coates, I have

          2        a question.  Don't you think the bevy of lobbyists here

          3        for each one of these jobs would have come here and told

          4        us what they wanted?  They knew this was on special order

          5        today.

          6             COMMISSIONER FORD-COATES:  I think the possibility is

          7        that they might not have noticed it because it didn't come

          8        before local government.  I think they were watching that

          9        agenda a little more and that's a problem --

         10             CHAIRMAN DOUGLASS:  Okay.  I think most lobbyists

         11        watch everything.

         12             COMMISSIONER FORD-COATES:  We'd like to think so but,

         13        you know.

         14             CHAIRMAN DOUGLASS:  Commissioner Barton had risen to

         15        ask a question, I think.  Commissioner Barton.

         16             (Off-the-record comment.)

         17             CHAIRMAN DOUGLASS:  Do you yield?

         18             COMMISSIONER FORD-COATES:  Most definitely.

         19             COMMISSIONER BARTON:  There was no testimony from any

         20        of the representatives of these officers in the county

         21        speaking.  I was rather surprised, frankly.  I would

         22        suggest that depending on where you live and the nature of

         23        the politics you might get, yes, I'm in favor of it or,

         24        no, I'm not.  Certainly in my area, they're all in favor

         25        of leaving it the status quo.



                                                                          310

          1             But as somebody who has personally been involved in

          2        the election process over a number of years, I would like

          3        to remind you that the two-party system has a role and

          4        that is the primary system introduces us to a variety of

          5        candidates and allows us to select from each party or as

          6        many parties as there may be viable the candidates to put

          7        forward.  They then run against each other in a process

          8        that allows us to learn about them and to learn what they

          9        stand for.

         10             I submit to you that it's a system that has done well

         11        for us for the most part and would like to see the status

         12        quo left as to the constitutional officers or any others.

         13        Thank you.

         14             CHAIRMAN DOUGLASS:  Commission Sundberg?

         15             COMMISSIONER SUNDBERG:  Believe it or not, I ran in

         16        the last nonpartisan contested election for the Supreme

         17        Court of Florida statewide.

         18             CHAIRMAN DOUGLASS:  And you had an opponent too,

         19        didn't you?

         20             COMMISSIONER SUNDBERG:  That's right.  I said

         21        contested.  And I will tell you, it is very difficult

         22        to -- and I was an incumbent -- but it is very difficult

         23        to organize a campaign and to really get your message out

         24        to the people unless you have some organized group helping

         25        you.  I mean, they plan events, they make it possible.



                                                                          311

          1        They give you platforms.  Because I will tell you, I

          2        stumbled around this state from Pensacola to Key West, you

          3        know, carrying my suitcase, such as it was, begging people

          4        to listen to me.

          5             So I'm suggesting to you, and maybe I'm simply

          6        seconding what Commissioner Barton said, that it does, I

          7        think, fill a needed function to have the parties.  It

          8        does give a structure to both the candidate and to the

          9        electorate to assess the qualifications of the person

         10        that's holding himself out for office.  So I would be

         11        opposed to this proposition.

         12             CHAIRMAN DOUGLASS:  Any further discussion?

         13             Commissioner Henderson?

         14             COMMISSIONER HENDERSON:  Mr. Chairman, I don't know

         15        how this affects the debate at all.  We're talking about

         16        old campaign experiences, Commissioner Sundberg.  I guess

         17        I'm confident I'm the only one in the room that served two

         18        terms as a county commissioner and was elected nonpartisan

         19        because in our charter enacted in 1970, it's always been

         20        nonpartisan elections in Volusia County.

         21             So all of our commissioners under that form of

         22        government have always been nonpartisans.  I don't know

         23        any better.  Okay.  I guess it's an odd way of saying it.

         24        I don't know what it's like in the other counties.

         25             I can tell you, I don't think there is a Democratic



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          1        or Republican way to pave the road.  I don't think there's

          2        a Democratic or Republican way to put in a sewer pipe.  I

          3        don't think there's a Democratic or Republican way to zone

          4        a house.

          5             And I can tell you when we had campaigns just like I

          6        guess they had in other places, and I guess, Commissioner

          7        Langley, I guess the wonderful part about it is I was able

          8        to actually go to Republicans and ask them for their

          9        votes.  They knew I had that "D" tattooed to my forehead

         10        but it didn't make a difference because we were talking in

         11        local government.

         12             And local government, it was -- we kept it on a

         13        professional plane.  And I know there are a lot of

         14        other -- there are other communities in the state where we

         15        have nonpartisan elections.  I guess what I would suggest,

         16        I don't know if this is a -- I think we had a discussion

         17        earlier in the session about school boards and had the

         18        same kind of discussion that we ought to have a local

         19        option in local communities to determine whether or not

         20        school boards should be nonpartisan and I think we made a

         21        decision, correct me if I'm wrong, Commissioner Marshall,

         22        I think it was your proposal, we proposed that -- we

         23        agreed to that; is that not true?  We had school boards

         24        that would give a local option for nonpartisan.  We have

         25        nonpartisan school boards in Volusia County too.  I



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          1        guess -- and we have parties as well.

          2             So I guess if -- my only recommendation here is that

          3        the system can work nonpartisan.  I think it works very

          4        professionally nonpartisan.  If you're going to do this,

          5        make it across the board.  If you're going to give

          6        somebody a local option to do it, let them do it for all

          7        of them.  They clearly have the ability to do that in any

          8        charter county.  And if we're just trying to increase the

          9        process so the people can do it in a non-charter county,

         10        my suggestion would be make it across the board, give them

         11        that choice.

         12             CHAIRMAN DOUGLASS:  Commissioner Rundle?

         13             COMMISSIONER RUNDLE:  Commissioner Riley, I wonder if

         14        you could help me through this just a moment.  I don't

         15        really have any strong feelings about this one way or the

         16        other and it seems to be an equity issue.  So I generally

         17        side with doing things that are across the board

         18        equitable.  But what I'm trying to understand is, I don't

         19        remember hearing at any of the public hearings, I didn't

         20        miss any, what problem are we fixing?  Because I'm trying

         21        to think of the last ballot and the items that are going

         22        to go on it.

         23             COMMISSIONER RILEY:  And we did hear it around the

         24        state.  We didn't hear it as often as we heard retirement,

         25        the net ban, the teachers' retirement system.  You know,



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          1        this isn't an organized effort.  The reason you may not

          2        recognize it is because I've watered it down so.  What

          3        our -- what the original proposal from the public was,

          4        make all county elections nonpartisan, period, flat,

          5        that's it.

          6             No vote of the electorate, no decision by the local

          7        people.  So I added that back in.  In talking to some

          8        other people, I then watered it down even further to the

          9        consternation of my friend Commissioner Henderson,

         10        evidently, and have eliminated county commissioners.

         11             I see what's left then is about as innocuous as you

         12        can get with some decision by 10 percent of the people as

         13        noted in the proposal.  They can put on the ballot for the

         14        decision of the local voters whether or not they want only

         15        these particular offices to be nonpartisan.

         16             Let me remind you that I know in my county every

         17        municipality has nonpartisan elections.  Every mayor is a

         18        nonpartisan election.  And in my county, all the city

         19        councils are nonpartisan elections.  I haven't noticed

         20        that they've had a great deal of difficulty in finding

         21        people to support them and people to put money into their

         22        campaign.  In fact, it could be argued that more people

         23        might put money into the campaign because they don't have

         24        a partisan issue.  And so they can put their money

         25        wherever they want.



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          1             So if you don't recognize it, it's because I have

          2        tried to take out all the thorns.  And so now we have this

          3        innocuous proposal that does something, it perhaps doesn't

          4        do as much as the public asks us to do.  I like the idea

          5        that it does take it back to the electorates at the local

          6        level and they decide.

          7             CHAIRMAN DOUGLASS:  All right, Commissioner

          8        Evans-Jones.

          9             COMMISSIONER EVANS-JONES:  Commissioner Riley,

         10        couldn't this be done legislatively?

         11             COMMISSIONER RILEY:  I don't think it can be done

         12        legislatively because of the way the Constitution deals

         13        with charter and non-charter.  As I understand it, it

         14        cannot be done that way.

         15             COMMISSIONER EVANS-JONES:  Well, I asked Commissioner

         16        Sundberg and he thought it could be done legislatively.

         17             COMMISSIONER RILEY:  Well, Commissioner Sundberg

         18        knows a great deal more about it than I do.

         19             CHAIRMAN DOUGLASS:  Only if the court says so.

         20             COMMISSIONER EVANS-JONES:  Only if the court says so

         21        of course.  Well, I just wondered, you know, I guess I'm

         22        not sure that this does that much if we're going to just

         23        have a few proposals to present to the public.  Maybe we

         24        should address it legislatively.

         25             CHAIRMAN DOUGLASS:  We're approaching the witching



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          1        hour.  Can't we vote on this or are we through?

          2             COMMISSIONER RILEY:  Commissioner Nabors is for it

          3        I'm sure.

          4             COMMISSIONER NABORS:  Real quick question.

          5        Commissioner Riley, I've never been on the Supreme Court.

          6        Would you believe me this could be done by general law

          7        because charter counties could have such power of local

          8        self-government not inconsistent with general law so it

          9        could be done by general law?

         10             COMMISSIONER RILEY:  I would still recommend that we

         11        pass the proposal.

         12             CHAIRMAN DOUGLASS:  All right.  Are we ready to vote?

         13        Unlock the machine.

         14             (Vote taken and recorded electronically.)

         15             CHAIRMAN DOUGLASS:  Lock the machine and announce the

         16        vote.

         17             READING CLERK:  Ten yeas, 15 nays, Mr. Chairman.

         18             CHAIRMAN DOUGLASS:  All right.  Tell you what, we've

         19        got one more we could take up and that is committee

         20        substitute for Proposal 184 by Commissioner Mills and the

         21        Committee on Ethics and Elections which relates to

         22        providing that the Legislature shall prohibit undue

         23        influence and other improper conduct in connection with

         24        elections.

         25             Since we have such a short time, Commissioner



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          1        Barkdull, do you have any suggestions as to whether or not

          2        we proceed or do you want to proceed, Commissioner Mills?

          3             COMMISSIONER BARKDULL:  I'd like to know what

          4        Commissioner Mills would like to do.  Do you want to

          5        proceed with it?

          6             COMMISSIONER MILLS:  Yes, Mr. Chairman, I think this

          7        one came out unanimously --

          8             CHAIRMAN DOUGLASS:  Read the proposal.

          9             READING CLERK:  Committee substitute for Proposal

         10        No. 184, a proposal to revise Article VI, Section 1,

         11        Florida Constitution; providing that the Legislature shall

         12        prohibit certain conduct in connection with elections.

         13             CHAIRMAN DOUGLASS:  Commissioner Barkdull, if you

         14        could hold your announcement just a minute and let him

         15        make a presentation here.

         16             COMMISSIONER MILLS:  Mr. Chairman, I think I can do

         17        this relatively briefly.  One of the issues that we heard

         18        a great deal about in the public testimony is public faith

         19        in the election process.  I think we actually have put

         20        together a very good election package so far including

         21        access, public financing, et cetera.  This concerns

         22        honesty in the election process and that is if someone is

         23        guilty of undue influence, bribery, fraud, deceit,

         24        uttering or publishing falsehoods, et cetera, as defined

         25        in here, as defined in the statutes, the Legislature



                                                                          318

          1        should provide for appropriate penalties including removal

          2        from office and removal from office is what is

          3        constitutionally needed here because, A, it would be

          4        difficult for the Legislature, I think, to do this.

          5             B, right now, misconduct during elections, if they

          6        are only misdemeanors, would not result necessarily in

          7        removal from office.  I have the faith that the

          8        Legislature will be able to craft this in a way that will

          9        be fair but perhaps would not craft it at all if we did

         10        not send it through the people.

         11             Just to let you know, this did pass unanimously

         12        through the Ethics and Elections Committee which includes

         13        Commissioners Kogan, Freidin, Brochin, Corr, Planas, and

         14        West.  To show what I would consider -- and Commissioner

         15        Barton -- to show that this was carefully considered by a

         16        wide range of individuals, a wide range of intelligent,

         17        thoughtful people.

         18             CHAIRMAN DOUGLASS:  Commissioner Evans-Jones?

         19             COMMISSIONER EVANS-JONES:  I guess I have the same

         20        question.  Can this not be done legislatively,

         21        Commissioner Mills?

         22             COMMISSIONER MILLS:  Not exactly sure that it would

         23        be.

         24             COMMISSIONER EVANS-JONES:  I understand that.  But it

         25        could be.



                                                                          319

          1             COMMISSIONER MILLS:  Could it be done, possibly.  And

          2        to me, also, this rounds out the elections package.  I

          3        mean, if we're talking about putting things together,

          4        there was a series of election package issues which make

          5        sense which respond to the public's request.  I think this

          6        is one of them as well.

          7             CHAIRMAN DOUGLASS:  I have a question.  Doesn't the

          8        idea that you can publish someone in this way for uttering

          9        or publishing a falsehood about opposing a candidate and

         10        so on, don't you have some First Amendment problems with

         11        the right to campaign because I think under the libel

         12        laws, civil laws, for example, you can lie all you want to

         13        if it's a public figure pretty much.  Unless you can prove

         14        malice, you can't even recover damages.  And this would be

         15        rising to a criminal penalty.

         16             COMMISSIONER MILLS:  Well, Mr. Chairman, you're

         17        exactly right.  We had a discussion of that yesterday and

         18        Commissioner Freidin being a good First Amendment scholar,

         19        helped us out.  This is as amended.  I think she removed

         20        the statements "libel" and "slander."  And does this take

         21        away our First Amendment right based on candidacy, no, as

         22        long as it is within it.  But, knowing fraud, some of the

         23        examples -- I guess my most extreme example that I can

         24        recall in terms of lying was a female candidate for the

         25        Legislature that was accused of being a man.




                                                                          320

          1             CHAIRMAN DOUGLASS:  I don't want to get into that,

          2        commissioner Freidin.

          3             COMMISSIONER MILLS:  Neither do I.  But as

          4        Commissioner Freidin said, what greater insult could there

          5        be?

          6             CHAIRMAN DOUGLASS:  On the other hand, what greater

          7        compliment could there be?  Just depends on which way

          8        you're looking.  It is late in the day.  Commissioner

          9        Langley.

         10             COMMISSIONER LANGLEY:  Well, I wanted to add a little

         11        levity.  Commissioner Thompson and I were just talking.

         12        One of our old friends, Billy Joe Rish, from Mt. Dora used

         13        to have a saying, You know, they tell a lot of lies on me,

         14        but they can't prove but a few of them.

         15             (Laughter.)

         16             CHAIRMAN DOUGLASS:  I think what everybody is trying

         17        to get by here, we get a little concerned when you start

         18        setting up rather vague standards for speech.

         19             COMMISSIONER MILLS:  Mr. Chairman, these are

         20        standards, many of which are defined.  You can't impinge a

         21        First Amendment right --

         22             CHAIRMAN DOUGLASS:  I'm not sure it's like yelling

         23        "fire" in a theater.

         24             Commissioner Sundberg.

         25             COMMISSIONER SUNDBERG:  I have a question of the



                                                                          321

          1        proponent.  Commissioner Mills -- two questions

          2        actually -- the first is, this is more stringent than the

          3        libel law, is it not, because presumably, there would be a

          4        public person if they're involved in the campaign and it's

          5        not only knowing it's false, libel would also include with

          6        a reckless disregard for the truth of it, correct?  And

          7        that's not --

          8             COMMISSIONER MILLS:  Yes, and you would be.  But, as

          9        you know, if you are uttering even a falsehood in a First

         10        Amendment protected context, it's not going to apply.

         11             COMMISSIONER SUNDBERG:  The other thing is though,

         12        what do you have in mind with the phrase "and other

         13        improper conduct in connection with elections"?

         14             COMMISSIONER MILLS:  Well, in the spirit of late

         15        afternoon amendments --

         16             COMMISSIONER SUNDBERG:  I'm sorry, that was too hard

         17        a question.

         18             COMMISSIONER MILLS:  No, what do I have in mind, if

         19        you have in mind taking it out, that's fine.

         20             CHAIRMAN DOUGLASS:  We'll entertain a motion to TP

         21        this.  We are approaching 6:00 and we've got to have

         22        announcements and you are going to like a couple of these

         23        announcements.

         24             The first one I'm going to make, before I call on

         25        Commissioner Barkdull is, appoint a select committee to



                                                                          322

          1        report back on the initiative propositions chaired by

          2        Commissioner Freidin and members Commissioners Corr,

          3        Sundberg and Rundle and they can -- we can notice a

          4        meeting for tomorrow morning at 9:30 in Room 301.  And

          5        they are going to report back at our next meeting.

          6             And now, for the good news from Commissioner

          7        Barkdull.  He never gives us good news, but he is today.

          8             COMMISSIONER BARKDULL:  Because of the hard work you

          9        did today and the Chairman removing nine items off the

         10        calendar at the last go-around, we will have no session

         11        tomorrow.  I have a series of motions.

         12             First, I move that Item No. 23 that's on

         13        reconsideration be carried over to the next session.

         14             CHAIRMAN DOUGLASS:  All right.  Without objection,

         15        it's carried over.

         16             COMMISSIONER BARKDULL:  Anybody have any matters to

         17        be withdrawn?  I would like to withdraw 154 relating to

         18        legislators' right to interfere with constitutional

         19        initiatives.

         20             CHAIRMAN DOUGLASS:  All right.  No. 154 without

         21        objection is withdrawn.

         22             COMMISSIONER BARKDULL:  I'd like to defer to

         23        Commissioner Thompson as chairman of Executive Committee

         24        for a motion.

         25             CHAIRMAN DOUGLASS:  Commissioner Thompson, you're



                                                                          323

          1        recognized.

          2             COMISSIONER THOMPSON:  I'm chairman of the

          3        Legislature committee and we had several proposals

          4        yesterday.  But because people were at other committee

          5        meetings, we never did get a quorum at one time.

          6             So I want to move to waive the rules and withdraw

          7        Proposal No. 134, which is length of session by a

          8        marshall; Proposal No. 90, which is legislative immunity

          9        by Hawkes; Proposal 105, which is term limits by

         10        Commissioner Planas; Proposal 150 regarding the

         11        Legislature by Scott; and Proposal 179, veto Legislature

         12        by Thompson, and Proposal 183, conversion of Constitution

         13        provisions in the general law by Brochin, all withdrawn

         14        from the Legislative Committee.

         15             CHAIRMAN DOUGLASS:  Now, if we're going to do it as a

         16        package, you're certain that all of the people who

         17        sponsored those want them withdrawn?

         18             COMMISSIONER BARKDULL:  No, he's not withdrawing

         19        them, he's withdrawing them from committee to go on the

         20        calendar.

         21             CHAIRMAN DOUGLASS:  Oh, you're putting them on the

         22        calendar.  I thought you were getting rid of them

         23        altogether.

         24             COMISSIONER THOMPSON:  We're just making them

         25        available for the calendar.



                                                                          324

          1             CHAIRMAN DOUGLASS:  So you're getting rid of them

          2        from the committee, not from the rest of us?

          3             COMISSIONER THOMPSON:  So we're going only to have

          4        one, just for everybody's benefit, one more package and

          5        that's going to be the apportionment issue.  And we'll try

          6        to bring that out at the next meeting.

          7             CHAIRMAN DOUGLASS:  Very well.  Then those will be

          8        moved to the calendar.  Commissioner Barkdull.

          9             COMMISSIONER BARKDULL:  I would move that the

         10        Legislative Committee be authorized to continue business

         11        through Monday the 26th because their time has expired.

         12             CHAIRMAN DOUGLASS:  Without objection, it will be

         13        done.  Are there any other committees that need to --

         14             COMMISSIONER BARKDULL:  Well, we have a select

         15        committee on Article V which is already -- has no

         16        termination at this point and it's set also on Monday the

         17        26th, I believe.  The Declaration of Rights Committee is

         18        meeting this afternoon, Room 301, and there will be no

         19        Rules Committee meeting tonight.  And if there is nothing

         20        else to come before the body, I move we recess --

         21             CHAIRMAN DOUGLASS:  We do -- Commissioner Mills?

         22             COMMISSIONER MILLS:  Mr. Chairman there were several

         23        members that expressed concerns about Proposal 91 by

         24        Commissioner Hawkes.  I told Commissioner Hawkes this and

         25        Commissioner Thompson has talked to me.  I would move to



                                                                          325

          1        reconsider the vote by which Proposal 91 passed and leave

          2        the -- this is relating to pollution control devices --

          3             CHAIRMAN DOUGLASS:  That was yesterday, so it had to

          4        be made today, correct?

          5             COMMISSIONER MILLS:  Right.  So I'm just making a

          6        motion to reconsider and leave that pending.  I talked to

          7        Commissioner Hawkes about this.  There will be --

          8             CHAIRMAN DOUGLASS:  Without objection, it will remain

          9        pending on reconsideration until the next meeting.  Do we

         10        have to vote on it?

         11             Declaration of Rights Committee meets in Room 309.

         12        Hold it just a minute.  All right.  They were trying to

         13        say you didn't vote on the prevailing side and I told them

         14        I remembered you did.  So it's all right.  They were

         15        wrong.  He was on the prevailing side.  He's moved to

         16        reconsider.  It's going to be carried over until the next

         17        meeting.  Commissioner Corr.

         18             COMMISSIONER CORR:  Thank you, Mr. Chairman.  Please

         19        withdraw Proposal 117 and Proposal 165.  The Executive

         20        Committee has come up with substitutes for these so these

         21        can be withdrawn.

         22             CHAIRMAN DOUGLASS:  Proposals 117 and 165, without

         23        objection, are withdrawn.  Now, Commissioner Barkdull --

         24        anything that passed today is subject to reconsideration

         25        in our next meeting.




                                                                          326

          1             COMMISSIONER BARKDULL:  Which would be Monday the

          2        26th.

          3             CHAIRMAN DOUGLASS:  Right.  So you can still make

          4        your motions on Monday.

          5             COMMISSIONER BARKDULL:  All right.  I move that we

          6        now recess until the hour of 1:00 p.m. on Monday,

          7        January 26th.

          8             CHAIRMAN DOUGLASS:  All right.  Without objection,

          9        we're doing it.  Incidentally, thank you-all for staying.

         10        This has been a pretty hard session and probably we pushed

         11        a little hard but we're getting an extra day off because

         12        of it.  And, Commissioner Kogan, we will try not to tire

         13        you out next time.  I'm kidding you.

         14             (Session adjourned at 6:00 p.m., to be continued on

         15        January 26th, 1998.)

         16

         17

         18

         19

         20

         21

         22

         23

         24

         25



                                                                          327

          1                             CERTIFICATE

          2

          3   STATE OF FLORIDA:

          4   COUNTY OF LEON:

          5
                        WE, JULIE L. DOHERTY, KRISTEN L. BENTLEY and
          6   MONA L. WHIDDON, Court Reporters, certify that we were
              authorized to and did stenographically report the foregoing
          7   proceedings and that the transcript is a true and complete
              record of our stenographic notes.
          8

          9             DATED this ______ day of ____________, 1998.

         10

         11
                                 _________________________________
         12                      JULIE L. DOHERTY, RPR

         13

         14                      _________________________________
                                 KRISTEN L. BENTLEY
         15

         16
                                 _________________________________
         17                      MONA L. WHIDDON
                                 COURT REPORTERS
         18                      DIVISION OF ADMINISTRATIVE HEARINGS
                                 1230 APALACHEE PARKWAY
         19                      TALLAHASSEE, FLORIDA  32399-3060
                                 (850) 488-9675
         20

         21

         22

         23

         24

         25