Daily Journal Article (5!20!09)

May 20, 2009
FORUM COLUMN: California's Government Is Broken - But Could a Convention Fix It?
By Steve Mayer
Thanks to the litigation over the validity of Proposition 8, most lawyers now know that there is a
difference between amending and revising the California Constitution, even if the exact line of
demarcation between the two remains unclear. But what they may not know is that some political
and business leaders want to revise the California Constitution - for reasons that have nothing to
do with Proposition 8 or same-sex marriage.
It doesn't require a doctorate in political science to know that something is amiss with California's
political system. The state has an ongoing structural budget deficit. The Legislature and the
governor had a difficult time enacting a plan to deal with the state's current budget crisis, and
could only agree by deferring some critical decisions to the electorate. And if the electorate
rejects the budget compromise adopted several months ago, solutions to the state's budget
problems are further away than ever.
These largely undisputed facts add up to a single conclusion: California's system of government
is seriously dysfunctional. Because a two-thirds vote is necessary to pass a budget or increase
revenue by raising taxes, a slender minority of the Legislature has veto power over these critical
issues. Term limits have led to a constantly shifting roster of short-term legislators supposedly at
the mercy of lobbyists with decades of insider knowledge about how state government works.
And, of course, the state's inflexible revenue system has led to over-dependence on the income
tax, which rises or falls dramatically at each turn of the business cycle.
Given these multiple constitutional constraints, it's not surprising that the governor and other
voices from (almost) all sides of the political spectrum have called for a new system of
government. Under Article 18 of the California Constitution, a proposed revision of the
Constitution must ultimately be approved by the electorate. But there are two routes to getting on
the ballot: a revision of the Constitution can be proposed either by a two-thirds vote of the
Legislature or by a constitutional convention. And there is only one way to call a constitutional
convention, the Legislature by a two-thirds vote puts a measure on the ballot to call for a
convention and the electorate approves it.
The requirement that two-thirds of the Legislature must call for a constitutional convention poses
a political problem. Since a constitutional convention might well eliminate the two-thirds
requirement for adopting a budget (and, possibly, the two-thirds requirement for imposing new
taxes for the purpose of raising revenue), it's hard to see why the minority Republicans would
agree to put a proposal for a constitutional convention on the ballot. But that has not stopped one
major proponent of a new constitutional convention, the Bay Area Council, an organization of
business leaders in the Bay Area. Although the council is reportedly lobbying the Legislature to
put a constitutional convention proposal on the ballot, if that fails, it will try to put on the ballot two
interlinked measures: an initiative constitutional amendment authorizing the electorate to call a
constitutional convention and a measure actually calling a convention. If both measures pass, the
convention would go forward.
But how would the delegates to a convention be chosen? The only bill currently in the legislature
that addresses this issue, AB 4, envisions a complex process. Applicants would first be screened
by a nonpartisan committee of auditors to create a pool of 240 semifinalists. The semifinalists
would then be subject to strikes by legislative leaders to create a pool of 144 finalists, of which 32
would be chosen by lot to be delegates. These delegates would choose 24 more, for a total of 56.
The bill also contains selection criteria aimed at eliminating partisanship (i.e., requiring that both
political parties be equally represented, along with a smaller but potentially decisive pool of
politically independent members, and making past office-holders and their immediate family
members ineligible for selection).
While this complex procedure is modeled after the procedures for selecting the redistricting
commission authorized by last year's Proposition 11, it is doubtful that it complies with the
California Constitution. Article 18, Section 2 requires that delegates to a constitutional convention
"shall be voters elected from districts as nearly equal in population as may be practicable." The
complex selection process created by AB 4 is not an "election" in any sense of the word. And it is
difficult to believe that the electorate in approving a constitutional convention would
simultaneously surrender its present right under Article 18, Section 2 to choose convention
delegates.
This means that the composition of a constitutional convention is likely to reflect the political
predispositions of the California electorate, which currently favor the Democrats. So it's unlikely
that a two-thirds vote of the Legislature would approve a convention. That leaves the Bay Area
Council's two-prong strategy as the likeliest road to a new governing charter.
Once the idea of a convention becomes the focus of political attention, it may be difficult as a
practical matter to restrict the subjects of a possible constitutional revision. For example, if a
constitutional convention proposal is submitted to the voters at the same time as a measure that
repeals Proposition 8, the issue of same-sex marriage could become part of the convention
debate.
Even if the Legislature or the electorate sought to limit the subjects that could be discussed in a
proposed constitutional convention, it's not clear that those provisions would have any force. After
all, the Constitution provides that a revision may become effective whenever its provisions
specify. So a revision could retrospectively nullify any limiting provisions in the measure
authorizing the convention and listing the permissible subjects of revision.
The best way around this problem would be to provide for pre-election review of any measure
that allegedly exceeds the convention's charter. There is precedent for that in the current
constitution's single-subject rule, which expressly authorizes pre-election challenges to initiatives
that address more than one subject. So a measure that sought retrospectively to eliminate
restrictions on the scope of a revision could be prevented from ever being approved by the
electorate.
Carl von Clausewitz famously said that war is the continuation of politics by other means. So is
constitutional law. Proposals for a constitutional convention merely shift the political battle - over
taxes, budgets, term limits and much else besides - to a new forum. But such proposals enable
the electorate to achieve constitutional change in one fell swoop that cannot be achieved through
constitutional amendments that must be enacted on a piecemeal basis.
Steve Mayer is a director with Howard Rice in San Francisco, where he specializes in initiative
law. He is the author of a blog on the California Constitution, which can be found at
calconst.blogspot.com.

Daily Journal Article (5!20!09)

Uploaded by

Copyright:

Available Formats

Daily Journal Article (5!20!09)

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Daily Journal Article (5!20!09)

Uploaded by

Copyright:

Available Formats

May 20, 2009

You might also like