Amendment One - Bad Policy, Deceptive Ballot

Q. What is Amendment One on the November 2 Ballot About?

A. Despite a deceptive ballot question, Amendment One is really aimed at limiting competition.

The current constitution has for over a century contained a provision prohibiting the legislature from passing any law that would permit anti-competitive contracts. Article III, Section VI, Paragraph V(c) says:

(c) The General Assembly shall not have the power to authorize any contract or agreement which may have the effect of or which is intended to have the effect of defeating or lessening competition, or encouraging a monopoly, which are hereby declared to be unlawful and void.

This has been held to prohibit enforcement of anti-competition agreements, except for very narrow and extremely justifiable reasons. It has enabled professionals and other skilled workers to compete, unshackled by anti-competition agreements imposed upon them by their employers. There is a large body of clear and coherent case law on this.

Amendment One expressly eliminates the constitutional provision barring the legislature from authorizing contracts that "have the effect of defeating or lessening competition," as the final bill shows here:

Article III, Section VI, Paragraph V of the Constitution is amended by revising subparagraph (c) as follows:
"(c)(1) The General Assembly shall not have the power to authorize any contract or agreement which may have the effect of or which is intended to have the effect of defeating or lessening competition, or encouraging a monopoly, which are is hereby declared to be unlawful and void. Except as otherwise provided in subparagraph (c)(2) of this paragraph, the General Assembly shall not have the power to authorize any contract or agreement which may have the effect of or which is intended to have the effect of defeating or lessening competition, which is hereby declared to be unlawful and void.
(2) The General Assembly shall have the power to authorize and provide by general law for judicial enforcement of contracts or agreements restricting or regulating competitive activities between or among:
(A) Employers and employees;
(B) Distributors and manufacturers;
(C) Lessors and lessees;
(D) Partnerships and partners;
(E) Franchisors and franchisees;
(F) Sellers and purchasers of a business or commercial enterprise; or
(G) Two or more employers.
(3) The authority granted to the General Assembly in subparagraph (c)(2) of this paragraph shall include the authority to grant to courts by general law the power to limit the duration, geographic area, and scope of prohibited activities provided in a contract or agreement restricting or regulating competitive activities to render such contract or agreement reasonable under the circumstances for which it was made."

See http://www.legis.ga.gov/legis/2009_10/versions/hr178_HR_178_AP_14.htm. This would give the legislature full power to legislate away the freedom of the state's employees to compete lawfully with former employers.

It boggles the mind how deceptively the General Assembly phrased the ultimate ballot question. That question evolved over time from a truthful question to a fraudulent question, as anyone can see in the legislative history that is available online at http://www.legis.ga.gov/legis/2009_10/sum/hr178.htm, under the heading "Versions."

The first version of the ballot question was accurate:

Shall the Constitution of Georgia be amended so as to authorize the General Assembly to provide for contracts that limit competition during or after the term of employment or of a commercial relationship and to authorize the courts to cure legal defects in such contracts in order to protect legitimate interests and achieve the intent of the parties?

The House Judiciary Committee then softened it a bit with this language:

Shall the Constitution of Georgia be amended so as to permit the General Assembly to enact laws that authorize contract provisions restricting or regulating competitive activities and enable courts to ensure the reasonableness of such contracts?

"Restricting" would be a giveaway, so the next version from the committee said:

Shall the Constitution of Georgia be amended so as to permit the General Assembly to enact laws that authorize contract provisions regulating competitive activities and to enable courts to ensure the reasonableness of such contracts?

"Regulating" was too much for the Senate, which then wrote:

Shall the Constitution of Georgia be amended so as to permit the General Assembly to enact laws that authorize contract provisions regarding competitive agreements to enable courts to uphold the agreements and to enable courts to ensure the reasonableness of such contracts?

The conference committee apparently decided that even this was too negative, and therefore decided to turn it into Mom and Apple Pie:

Shall the Constitution of Georgia be amended so as to make Georgia more economically competitive by authorizing legislation to uphold reasonable competitive agreements?

This version passed and is on the ballot. The voters are asked whether they want to make Georgia more economically competitive without realizing that they are voting to give away a constitutional right to compete. They are being asked to uphold reasonable competitive agreements though they would really be voting for anti-competitive agreements.

Can the legislature get away with such deception? Unfortunately, the answer is yes. The constitutional amendment process, as construed by the Georgia Supreme Court, gives the legislature an open invitation to commit election fraud, as they propose to do here. In Donaldson v. Dep't of Transp., 262 Ga. 49 (1992), which anyone can read at http://scholar.google.com/scholar_case?case=14420030597948930438, Justice Weltner's dissent points out how affirmatively deceptive the ballot was in that case.

(b) It is difficult to imagine a plainer case of affirmative misstatement than this case. Consider:
(i) The voters were asked whether they wanted the right to sue the state.
(ii) The voters answered "yes."
(iii) Because they answered "yes," their existing rights to sue the state have been terminated!

The majority did not disagree; they stated the rule for framing amendment ballots thus:

The only limitation on the General Assembly in drafting ballot language is that the language be adequate to enable the voters to ascertain which amendment they are voting on.

So, as long as the voters can determine that they are voting on something having to do with competition, and not with trauma centers or other amendments, it doesn't matter what the Yes-No question says. A concurring Justice put the matter very clearly:

The proper focus of this court's inquiry is whether the ballot language, even if deceptive as to the purpose of the amendment, prevented the voter from knowing which amendment he was voting for or against.

Thus, if the legislature wants to commit fraud on the public, this is how they can do it legally.

The proposed constitutional amendment will enable the legislature to pass statutes that will allow employers to shackle employees, to keep them subservient, by requiring them to sign anti-competition agreements on pain of unemployment. And the legislature can make new legislation every session to further bind employees to their current employers. If competition is good, this constitutional amendment is bad. I urge everyone to vote NO on amendment one.