Part I

Why All the Amendments?

On November 3, 1998, Georgia voters will go to the polls. Foremost on the minds of most people will be the races for governor, other constitutional officers, and all seats in the Georgia General Assembly. Yet, there are other important issues to be decided in the 1998 general election. On the ballot will be five proposed constitutional amendments and five proposed ad valorem tax exemptions. Also, voters of Macon and Bibb County will decide whether to repeal a local constitutional amendment originally ratified in 1953 that applies only in Bibb County.

Formal Procedure for Amending Georgia's Constitution

Article 10 of the Georgia Constitution of 1983 provides that amendments (or a new constitution) can only be proposed by joint resolution of the General Assembly or by a constitutional convention called by the General Assembly [a procedure that has not been used since 1877]. In either case, the proposal requires the approval of two-thirds of the total membership of each house -- which means a proposed amendment needs at least 38 of 56 total votes in the Senate and 120 of 180 total votes in the House. After an amendment has been formally proposed, a summary of the complete text of the amendment is prepared by the Attorney General, Legislative Counsel, and Secretary of State. This summary must be published in the newspaper that has been designated legal organ for each county once a week for three consecutive weeks prior to the general election at which the amendment will be voted upon. Additionally, the Secretary of State is responsible for preparing a simple description of each amendment for distribution to the public. Ratification of a proposed constitutional amendment requires approval by a majority of those voting on that amendment in the general election. There is no requirement that an amendment be voted on, and it is not uncommon for Georgia voters to skip voting on one or more amendments. But, the majority requirement only applies to those who actually voted on a particular amendment.

Why Georgia's Constitution Is Amended So Often

Georgia's first state constitution was adopted in 1777, and in the following century there were a total of 35 amendments to the various Georgia constitutions. However, during the next 100 years (1877-1977), Georgia's constitution was amended over 1,400 times! Prior to 1983, the single factor accounting for most of these changes was the anomaly of local constitutional amendments -- that is, allowing cities or counties to exempt themselves from some provision of the state constitution though a constitutional amendment applying to and voted upon only in that city or county.

In a conscious effort to eliminate the constant amending of the state constitution, framers of the Georgia Constitution of 1983 prohibited any new local amendments (though providing a system for allowing existing local amendments to continue in force). Nevertheless, as the table below shows, Georgia's constitution continues to be amended at every general election.

Amendments to the Georgia Constitution: 1984-1996

In the 13 years following its adoption, the Georgia Constitution of 1983 has been amended 49 times -- with five more amendments on the 1998 ballot. Local amendments are no longer allowed, but general amendments continue to appear on every general election ballot. What accounts for this constant tinkering with Georgia's constitution? In general, there are some of the most common reasons:

1. Desire to Get Around Constitutional Prohibitions or Mandates. By far, the main reason for constitutional amendments is the desire by some person or group to do something not allowed by the Georgia Constitution. In recent years, the mandates most targeted for exemption are the constitutional requirements that

(a) all revenues must be deposited into the state treasury's general fund to then be appropriated by the General Assembly [Art. 7, Sec. 3, Par. 2 (a)];

(b) all appropriations to state agencies must be for specific sums [Art. 3, Sec. 9, Par. 6 (a)];

(c) no tax or other source of revenue can be dedicated or earmarked for a particular program [Art. 3, Sec. 9, Par. 6 (a)]; and

d) funds appropriated to a specific agency or program that have not been spent by the end of the fiscal year (June 30) lapse and revert to the state's general fund [Art 3, Sec. 9, Par. 4 (c)].

Other notable provisions of the Georgia Constitution responsible for past amendments include:

(a) the general prohibition in Art. 3, Sec. 6, Par. 6 (a) on "gratuities" (i.e., any gift or benefit that a person receives without actually earning it -- such as scholarships and indemnification for death or permanent disability), and

(b) the requirement in Art. 7, Sec. 1, Par. 3 (a) that all taxes be uniform (which prohibits property tax exemptions to business or classes of persons such as the elderly).

2. Ease of Amending Georgia's Constitution. Unlike the federal amending process, which requires three-fourths majorities for Congress to propose and states to ratify constitutional amendments, changing the Georgia Constitution requires two-thirds approval in the General Assembly with ratification by a simple majority of those who vote on that amendment in the general election. [In 1988, 25 percent of Georgians who voted skipped entirely the constitutional amendments.] Compounding the problem, Georgia's General Assembly has no special constitution oversight committee with specific responsibility for helping ensure that proposed constitutional amendments are of true constitutional significance and are consistent with other constitutional provisions. Moreover, there are no rules limiting the number of proposed amendments that are placed before the voters on any general election ballot.

3. Differences in U.S. and State Constitutions. Under our federal system, states have a broad range of powers--everything, in fact, not specifically delegated to the national government or prohibited by the U.S. Constitution . Thus, state constitutions are almost always longer and cover many more areas than the national constitution. Also, by tradition, the language of state constitutions tends to be much more specific and detailed than the broadly worded U.S. Constitution. The more detail in a constitution, the more likely it will need to be amended over time.

4. Strategy of Framers of the Constitution of 1983. There were a number of controversial issues (e.g., state lottery and limitation on gubernatorial succession) that framers of the Constitution of 1983 decided not to include in their proposed document. Their fear was that including major controversial issues would increase chances that voters would reject the new constitution. Thus, a number of important changes were left out, meaning supporters of those changes would have to resort to future constitutional amendment after the Constitution of 1983 was approved.

5. Excessive Caution. Another reason for the number of constitutional amendments on each general election ballot is that legislators (and others) often feel that a constitutional amendment is the safest way to go, even though the desired action probably could be accomplished through simple enactment of a statute. Thus has developed a tradition of when in doubt, amend the constitution. The result is a growing amount of statutory detail in Georgia's constitution. Unfortunately, statutory detail begets more statutory detail.

6. Passing the Buck. Because constitutional amendments frequently involve complex legal issues, many legislators don't understand what a particular amendment would do or why it is needed. So, they often pass the issue on to the voters in the hopes they'll know what's right. However, most voters have even less comprehension of the issues involved, so they vote for the amendment assuming that legislators must have thought it a good idea in proposing it. As a result, except for controversial issues, Georgia voters seldom reject an amendment proposed by the General Assembly.

7. New Issues Arise. Some constitutional amendments occur because they involve issues not addressed by the Constitution of 1983, and thus there is no other way to act short of amending the constitution.

8. Politics. Although we like to think of a constitution as a legal charter above politics, ultimately it is a political document. Amendments are sometimes proposed because of dissatisfaction with a particular constitutional official or agency, due to a desire to protect a particular program from the legislature or the governor, or for other reasons of a political nature.

Dedicated Taxes and Revenues in Georgia

In many states, a sizable portion of state revenues are either dedicated by law for certain programs or are committed to funding entitlement programs. As a result, lawmakers in such states have little discretionary money left in the budget for new priorities. To be sure, Georgia legislators face a tight budget every year, since the governor is required to submit a budget that proposes how every anticipated dollar of revenue will be spent. Other than the governor's discretionary fund, there are no "miscellaneous" or "contingency " categories -- nor is there a budget category for legislators to draw from in funding projects in their home districts. However, once that budget has been introduced in the House, lawmakers have the freedom to try to reshape the governor's spending recommendations. Obviously, much of the budget is committed to just continuing existing programs -- but the General Assembly is under no legal requirement to refund each agency and program for another year. Moreover, in Georgia, lawmakers cannot be bound by a previous legislature, nor can they commit the state to contractual obligations in excess of one year without obtaining prior voter approval.

Partly as a response to abuses during Reconstruction, Georgia has followed a "pay as you go" philosophy where the governor and legislature control taxes and spending. This has meant taxes prescribed by statute rather than by the constitution; short-term budgets; a requirement that all state revenue be deposited in the general fund for appropriation by the legislature; a prohibition on independent sources of revenue for agencies and programs that bypass the appropriations process; and the inability of agencies to carry money forward from one fiscal year to the next. Were it not for these safeguards, those agencies that can generate revenue might be less dependent of the legislature and normal budget process.

Historically, Georgia has shied away from dedicated taxes--that is, a tax whose proceeds are earmarked for a particular agency or program. To be sure, there have been some exceptions. For example, when Georgia had a poll tax the proceeds from the $1 tax by law had to be spent "for educational purposes." In the 1880s, state law required circuses to pay a $200 tax for each day they were open, with the proceeds earmarked "for educational purposes." But, with a few exceptions, the historical practice in Georgia was that all tax revenue was paid into the general state treasury, with the legislature and governor then deciding each year on how these monies are to be allocated among state agencies and programs.

In 1921, the General Assembly enacted Georgia's first motor fuel tax (though technically it was an occupational tax on fuel distributors), but the 1¢ per gallon revenue from that tax went into the state's general fund. Two years later, because of the tremendous need and demand for highways, legislators raised the tax to 3¢ per gallon and provided that 1¢ per gallon would go to paying off the debt that had arisen from discounting rental of the state's Western and Atlantic Railroad, 1¢ per gallon would go to counties for construction and maintenance of public roads, and 1¢ per gallon would go to the state road system. In 1925, the gasoline tax was raised to 3 1/2¢, with the additional 1/2¢ dedicated to the state road system. In 1927, the motor fuel tax was raised to 4¢ per gallon, with 2 1/2¢ going to state highways, 1¢ to county roads, and 1/2¢ to a state equalization school fund. In 1929, the legislature raised the motor fuel tax to 6¢ per gallon, with 4¢ dedicated to the state road system, 1¢ to counties for roads, and 1¢ for schools.
Framers of the Constitution of 1945, however, imposed a ban on dedicated taxes in Georgia by providing in Art. 7, Sec. 9, Par. 4:

"The appropriation for each department, officer, bureau, board, commission, agency or institution for which an appropriation is made, shall be for a specific sum of money, and no appropriation shall allocate to any object, the proceeds of any particular tax or fund or a part or percentage thereof."

The new constitution further prohibited agencies or programs from bypassing the General Assembly and utilizing state revenue outside the appropriation process. According to Art. 7, Sec. 2, Par. 3:

"All money collected from taxes, fees and assessments for State purposes, as authorized by revenue measures enacted by the General Assembly, shall be paid into the General Fund of the State Treasury and shall be appropriated therefrom, as required by this Constitution, for the purposes set out in this Section and for these purposes only."

The proceedings of the Constitutional Commission of 1943-44 show no discussion or debate on prohibiting dedicated taxes, so it is not known whether commission members were reacting to the existing motor fuel tax. Though that tax's distribution formula likely violated the new Georgia Constitution, the General Assembly did nothing to amend the law -- and it is unclear whether legislators continued to honor the motor fuel tax distribution formula.

In 1951, the General Assembly proposed a constitutional amendment that would require the legislature to appropriate for state and county roads an amount not less than the net revenue received from motor fuel and motor vehicle license taxes collected during the preceding fiscal year. The amendment further dropped any distribution formula and eliminated the school equalization fund as a beneficiary of the motor fuel tax.

Ratification of the amendment meant that there was now one exception to the general prohibition in the Georgia Constitution on dedicated taxes. The next effort to allow earmarked taxes came in 1960, when the General Assembly proposed a constitutional amendment allowing creation of separate agricultural commodity commissions to promote such products as milk, eggs, and peanuts through assessing fees to the farmers of those products. However, in 1967 the Georgia Supreme Court struck down the arrangement on the grounds that the legislature had unlawfully delegated its taxing power to the commissions. So, in 1968, another constitutional amendment was proposed and adopted that specifically allowed the agricultural commodity commissions to set the assessments. Though this affected only farmers, Georgia now had its second dedicated tax. More importantly, Georgia now had its first example of a dedicated tax that could be kept and spent by an agency without first being deposited into the state treasury and then appropriated by the legislature.

Trust Funds and Dedicated Revenue Sources

Often related to the earmarked revenue source is the relatively new phenomenon in Georgia of state trust funds. A trust fund is a continuing fund maintained to benefit some category of persons or public purpose. Key characteristics of a trust fund are:

• Funding primarily comes from a dedicated tax, assessment, levy, penalty, or other source of earmarked revenue.
  
• Funds don't lapse at the end of a fiscal year.
  
• It usually operates outside the normal appropriation process.
  
• It often is set up to operate into perpetuity.

The major problem with these characteristics is that they are specifically prohibited by the Georgia Constitution. Thus, before a new trust fund can be created, the state constitution must be amended to specifically authorize that trust fund.

Prior to 1976, there were no state trust funds in Georgia. That year, however, the General Assembly proposed and voters ratified a constitutional amendment to create a Subsequent Injury Workmen's Compensation Trust Fund. The fund was created to pay a portion of the disability expenses to an employee resulting from a combination of previous disability and a subsequent injury, to be funded from assessments levied on insurance companies, as well as such appropriations that might be granted by the General Assembly. Although the amendment did not specifically address the issue of funds lapsing at the end of the fiscal year, presumably the trust fund was exempted from that constitutional provision also by implication -- since it was to be a continuing fund. While the new trust fund was removed from the budget process, the constitutional amendment did grant the General Assembly some authority over the fund, namely: "The General Assembly may authorize collection, deposit, and management of funds, and may provide for the disposition of the funds for purposes stated herein-above without being placed in the State Treasury."

In 1978, two related constitutional amendment were proposed by the Georgia legislature and approved by voters. One allowed the General Assembly to authorize an additional assessment to be added to any fine for violation of a criminal or traffic law, with such assessments collected to be used to help fund training programs for law enforcement officers in Georgia. The amendment was an addition to Art. 7, Sec. 2, Par. 3 of the 1976 Constitution, which provides that all taxes, fees, and assessments collected by the state be deposited into the general fund of the state treasury for appropriation by the General Assembly. The amendment also affected Art. 3, Sec. 10, Par. 7, however,which provided that "no appropriation shall allocate to any object, the proceeds of any particular tax or fund or a part or percentage thereof." By restricting the use of assessments to training law enforcement officers, the amendment by implication also exempted the trust fund from the requirement that unspent funds lapse and revert to the general treasury at the end of a fiscal year.

The second 1978 amendment provided an indemnification program to make payments up to $50,000 to the family or estate of any law enforcement officer, fireman, or prison guard killed in the line of duty. Because this $50,000 amounted to an unearned gift, the amendment was added to Art. 3, Sec. 8, and Par. 12 of the Constitution of 1976 -- the provision that prohibits the state from granting gratuities. Because the amendment authorized the General Assembly to levy taxes and appropriate state funds to provide for a "continuing fund", it apparently exempted the indemnification program from the constitutional prohibition against allocating the proceeds of any particular tax to any program, as well as from the requirement that funds lapse at the end of the fiscal year.

Framers of the Constitution of 1983 added another exception to Art. 3, Sec. 9, Par. 6's prohibition against the proceeds of any tax being dedicated to a particular program by allowing three-fifths of each house to earmark any or all of the proceeds of Georgia's alcohol tax to be used for prevention and treatment programs for alcohol and drug abuse. To date, this provision has not been implemented by the legislature.

In 1986, the General Assembly proposed and voters approved a constitutional amendment to create the State Children's Trust Fund to disburse funds for child abuse and neglect prevention programs. The trust fund was added as an amendment to Art. 3, Sec. 9, Par. 6 of the Constitution of 1983 -- the provision prohibiting allocating the proceeds of any tax or fund to a particular program. The General Assembly was authorized to appropriate money into the trust fund, which was specifically exempted from the constitutional requirement that unspent funds lapse to the general fund at the end a fiscal year.

Then came 1988 -- the year of the trust funds. Lawmakers proposed and voters approved constitutional amendments setting up six different trust funds or dedicated taxes:

• an unnamed "continuing fund" to compensate innocent victims of crime as a specific exception to Art. 3, Sec. 6, Par. VI's prohibition of gratuities and by implication an exception to the Art. 3, Sec. 9, Par. 4(c)'s requirement that unspent funds lapse at the end of a fiscal year;
  
• a State Housing Trust Fund for the Homeless as a specific exception to Art. 3, Sec. 9, Par. 4(c)'s requirement for lapsing of unspent funds;
  
• a Seed-Capital Fund as a specific exception to Art. 3, Sec. 9, Par. 6's prohibition on allocating the proceeds of any tax or fund to a particular purpose;
  
• an Export Finance Fund as a specific exception to Art. 3, Sec. 9, Par. 6 and Art. 3, Sec. 9, Par. 4(c) (identified above);
  
• an Indigent Care Trust Fund as a specific exception to both constitutional provisions above; and
  
• a program of dedicated assessments for persons guilty of violating criminal or traffic laws, which such assessments to be allocated to the construction and operation of county correctional facilities.

In 1990, lawmakers proposed and voters ratified a constitutional amendment to set up an Emerging Crops Fund specifically exempted from Art. 3, Sec. 9, Par. IV(c)'s requirement that unspent funds lapse at the end of a fiscal year. Also approved was a constitutional amendment setting up a new Education Trust Fund.
In 1992, Georgia's Constitution was amended to allow a state lottery, which would be specifically exempted Art. 7, Sec. 3, Par. 2's requirement that all revenue be paid into the general fund of the state treasury, Art. 3, Sec. 9, Par. 6's prohibition on the proceeds of any tax or fund being allocated to a particular program, and Art 3, Sec. 9, Par. 4(c)'s require that unspent funds lapse at the end of a fiscal year.

Now, there will be three more proposed trust funds on the 1998 ballot.

Editorial Note on Dedicated Taxes and Trust Funds

While none of the trust funds or dedicated taxes that have been approved in the past (or may be ratified in the future) are in and of themselves wrong, taken collectively they do have an impact on important constitutional principles. Beginning with constitutional amendments approved in 1976 setting up dedicated revenue sources and trust funds, important general provisions in the Georgia Constitution have been eroded -- one or two dedicated taxes or trust funds at a time. In every case, the individual causes have been worthy. And, it is true that except for the motor fuel tax and the lottery, the amount of money being raised by dedicated revenue sources and spent by trust funds is tiny in comparison to the total state budget. However, if current trends continue, it is only a matter of time before supporters of major programs begin a campaign for their own dedicated taxes and trust funds. The cumulative impact of this will be to set up more and more funding programs that operate outside the legislative process and are thus removed from legislative oversight during the budgetary process. Similarly, earmarked revenues and trust funds based on dedicated revenues do not have to compete with other equally important state programs -- such as pre-natal infant care, child abuse prevention, and law enforcement.

As a result of constitutional amendments since 1976, certain sections of Georgia's Constitution are already patchworks of exemptions. When exceptions swallow the rule, that rule is no longer valid and might as well be discarded because of the ease of getting around it.

One alternative to the continuing exemptions would be to provide general language in the Georgia Constitution setting forth the conditions under which the General Assembly can establish trust funds by statute. A compromise approach would be to include a "sunset" provision in any constitutional amendment authorizing a new dedicated revenue or trust fund. For example, a new trust fund could be constitutionally authorized for a period of five years. At the end of that period, the constitutional status would automatically expire and the language removed from the constitution. At that point, the tax, assessment, or other revenue source that was dedicated to the trust fund would begin flowing into the state's general fund for appropriation by the General Assembly. This approach would give a trust fund time to get off the ground but eventually place it on an equal footing with other state programs. It would also do minimum harm to the Georgia Constitution by avoiding permanent exemptions and patchwork articles.

Go to Part II

Go to Part III

(c) 1998 Carl Vinson Institute of Government, The University of Georgia

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