The California Constitution is no work of art.
It’s more like the Winchester Mystery House in San Jose. Lots of little rooms, stairs that lead nowhere, doors that open onto blank walls and windows set into the floorboards. “We keep adding rooms, but the hallways don’t connect together,” says state Sen. Mark DeSaulnier, of our state’s constitutional house of mystery. “There’s not a lot of thought given to the overall architecture.”
Since 1879, the state constitution has been amended 512 times. Compare that to the U.S. Constitution, which you just don’t mess with. Its 27 amendments are straightforward principles concerning the essential function of government and the rights of the governed.
The California Constitution is more like a very long grocery list, on which one can scratch things out or scribble them in. The right to fish and the right the conduct stem-cell research are constitutional rights in California. The constitution divvies up vehicle license fees. Laws regulating low-rent housing projects are enshrined in the constitution. It’s loaded down with special taxes and spending restrictions that cannot be changed, except by a vote of the people.
“We’ve embedded so many policy decisions into the state constitution, it’s just become unworkable,” said Mark Paul, with the New America Foundation, a nonpartisan think tank. Unworkable. Unmanageable. More and more, pundits and academics say the state is literally “ungovernable.”
The May 19 special election shows just how bad things have become.
Faced with a $42 billion budget deficit, the state Legislature asked voters to approve an array of budget measures that lawmakers could not perform themselves, thanks to decades of budgeting by ballot initiative and constitutional amendment. Voters soundly rejected Propositions 1A through 1E—and seemed to be saying, “That’s not our job.”
“The electorate absolutely hated it. But the fact is that the Legislature had to do it that way. We’ve tied ourselves in knots,” said Paul.
Now the Legislature is contemplating billions of dollars more in cuts to education and welfare, closing most of the state parks, cutting off funding for local health and transportation agencies and selling off state-owned landmarks to private developers. A powerful anti-tax minority in the statehouse has effectively blocked any new sources of tax revenue, thanks to California’s two-thirds vote requirement to raise taxes to pass a budget.
“It’s a big moment for the state of California,” said Derek Cressman, western regional director with the government watchdog Common Cause. “It’s a scary moment, because a lot of people are going to suffer this summer.” But he added that this scary moment could be an opportunity. “We are at this moment, in American politics, where people are ready to embrace fundamental change. I wouldn’t discount anything.”
Cressman, Paul and DeSaulnier are just a few of a growing number of people calling for an overhaul of the state constitution. Some want to ditch the current requirement that a two-thirds vote of the Legislature is needed to pass a state budget. Some want to do away with the state Senate and switch to a unicameral Legislature. Others want to get rid of partisan primary elections, which some observers say lead to ideological extremes in the statehouse, and constant gridlock.
Support is building for a “constitutional convention,” where delegates from all over the political spectrum would hash out a package of fundamental government reforms and then present them to the voters for approval. One group, called Repair California, is hoping to get a measure on the November 2010 ballot that would call a constitutional convention, the first one in California since 1879.
But a constitutional convention is just one way to give state government a makeover. A group called California Forward, led by former Assembly Speaker Bob Hertzberg, is hoping to convince the Legislature to put a package of reforms, called a “constitutional revision,” on the ballot in November 2010. “We have a significant challenge here in California, and we need to fix it as quickly as possible,” Hertzberg said, adding that his group’s approach would be quicker and more predictable than a constitutional convention.
A convention, a revision … or something else entirely. What’s the best blueprint for fixing California’s ramshackle, dysfunctional mystery house of government?
How do we fix this mess?
The idea of a constitutional convention has been gaining steam since last summer, when members of an influential business organization called the Bay Area Council grew frustrated with yet another state budget stalemate.
“In recent years, Sacramento has become a place where it’s impossible to get anything done,” said John Grubb, spokesman for the Bay Area Council.
The council has been around for 60 years and was instrumental in the creation of the Bay Area Rapid Transit system in the 1950s and 1960s, with plenty of help from the state Legislature. On transportation projects, education initiatives and other efforts, the group has long looked to the state Legislature for help. And in August of 2008, representatives from the group came to the state Capitol for their annual Sacramento Day of lobbying and networking.
“But it was pointless to try and talk about education bills, or water bills,” said Grubb, “because it was clear that the budget bill was nowhere close to being done.”
They did manage a meeting with DeSaulnier, who mentioned the idea of a constitutional convention.
The notion stuck, and gained momentum up until the spectacular defeat of a Props. 1A through 1E. A coalition called Repair California was formed in the aftermath, including the Bay Area Council, good-government groups such as Common Cause and others spanning the ideological spectrum from the liberal Courage Campaign to the conservative Lincoln Club of Orange County.
“It seems like the hand of fate has been guiding the constitutional convention to California. May 19 was yet another sign that the system is broken,” said Grubb. On May 20, Repair California officially launched its campaign for a constitutional convention. If they have their way, we’ll all be voting on the matter in November 2010.
It’s not hard to amend the state constitution.
Citizen groups can put any reform that they like on the ballot, including the two-thirds requirement for a vote on the budget. But only the Legislature or a constitutional convention can put a whole package of reforms before the voters at once.
But the route to a constitutional convention is arduous. The state Legislature, with a two-thirds vote, can agree to place a measure on the ballot asking the voters of California, “Should we call a constitutional convention?” If the voters say “yes,” then it is up to the state Legislature to pass more legislation, determining how delegates to the convention are chosen, the subject matter to be debated at the convention and how the whole thing will be run. Then the delegates meet, split into subcommittees, hold hearings and eventually vote on a package of recommendations for reform.
Then it’s back to the ballot—the whole proposal has to be voted up or down by the people before it can become enshrined in the constitution.
The whole process has only been completed once during California’s statehood, in 1878 to 1879. That convention is mostly remembered now for churning out laws limiting the rights of California’s Chinese immigrants.
In 1934, during the unrest that accompanied the Great Depression, the California state Legislature again asked the people if they wanted to call a constitutional convention. Voters said “yes,” but the lawmakers never followed up with the laws needed to put the convention in motion.
“They just completely ignored the will of the people,” said Grubb.
In January, DeSaulnier introduced a bill asking for the Legislature to put the question of a constitutional convention to the voters. But Repair California is taking a different path—not wanting to repeat the example of the 1930s.
The group has drafted two ballot measures: One would give the people of California the same power that state lawmakers have to put the call for a constitutional convention on the ballot. Let’s call that Proposition 1.
The next measure, Proposition 2, would call the convention. Prop. 2 would also outline all of the particulars, including how delegates to the convention are to be selected and what possible reforms will, and will not, be on the table. More on those details later.
In order to get the measures on the 2010 ballot, Repair California will have to gather about 1.6 million signatures in the space of about 150 days.
It’s perfectly doable, if you have enough money. Here’s the thing: Grubb says that the group wants to qualify the two measures for the ballot without using paid signature gatherers. He figures that hasn’t happened in at least 20 years.
So who gets to be a delegate to the constitutional convention? What Repair California is proposing is a citizen assembly of five delegates from each state Assembly district—400 delegates in all.
Grubb takes pains to say that this proposal is still a draft, and this process is not yet set in stone. That said, the delegate pool would be something like your county jury pool—the only qualifications are citizenship, being at least 18, one year of California residence, no felonies and “sufficient mental capacity” to serve.
The state auditor would write to 25,000 randomly selected potential delegates and ask if they are willing to participate. Everyone who answers “yes” has their name entered into the pool. Five delegates and three alternates would then be selected by lottery in each district.
But unlike jury duty, which you try to get out of at all costs, Repair California wants to make serving as a delegate to the constitutional convention worth your time. Grubb says the plan is to pay citizens at the same rate as state legislators. Let’s see: $116,000 divided by 365—that’s at least $300 a day.
“The delegates will be people like you, they will be grandmothers and truck drivers,” said Grubb. And a large delegation would do better to ensure good representation among different ethnic groups—obviously not a strong point of the 1879 convention.
Another advantage of the citizen assembly is that whatever it recommends, no one can say the proposal was cooked up by the corporations or the politicians; or the left or the right; or the trial lawyers, unions or fundamentalists.
The disadvantage is that 400 random Californians together might not have a lot of special insight into how to fix the government.
“It shouldn’t be a group of random citizens,” said Mary-Beth Moylan, who teaches elections and the initiative process at McGeorge School of Law. “It requires some level of expertise. Really what you need is people who understand governmental structures and processes.”
And the folks at Repair California acknowledge there are other options. Another approach would be to collect the “best and brightest” of California, by having the commission review applications and appoint a delegation, probably a smaller one, of people with some expertise. The third option is the same one followed in 1879: Directly elect the delegates in each county or Assembly district. “Nobody wants to go this route,” said Grubb, adding that delegate elections would be a nightmare, with competing slates organized along ideological and special-interest lines. “It would be like the state Legislature.”
Fear of a 'runaway convention'
What might emerge from such a convention? Technically, a constitutional convention could be open to any subject. And critics have raised the possibility of a “runaway convention” that gets bogged down in dozens of unrealistic ideas and irresolvable arguments.
Some conservatives are particularly leery of possible changes to California’s tax rules. “Most of us on the conservative side are disinterested in a wide-open process; we don’t know what would come out of that,” said Tom Del Beccaro, vice chairman of the California Republican Party. “Part of it is the fear that there will be significant tax increases. Like the gutting of Proposition 13.”
Others worry that the convention will turn into a vehicle for particular social agendas. But Derek Cressman says these fears are probably misplaced. “Anything that you fear might come out of a constitutional convention, you really should fear now. Because the Mormon church could drop $20 million and put it on the ballot tomorrow.”
To quell fears of a runaway convention, the Repair California measure, in its current form, limits the convention to four areas: elections, including the initiative process, term limits and campaign finance; governance, including the structure of the different branches of government and state agencies and commissions; the budget process; and the relationship between state and local government, especially the revenue relationship between the two.
Right away, Grubb notes, “That walls off all of the social issues.” No abortion, gay marriage or prayer in schools. Nothing to do with the legalization of peyote or the prohibition of pissing Calvin truck decals.
Perhaps just as importantly, though it will disappoint many progressives, the measure specifies that the convention will be prohibited from directly increasing taxes or revising the property-tax provisions of Proposition 13. The property-tax law is too divisive, organizers figure. While some parts of the sweeping 1978 law could be reformed, any tinkering with the property-tax parts of Prop. 13 would doom the whole reform package at the ballot.
That still leaves a lot of ground to cover. And there’s a lot of agreement between Repair California and California Forward, the group that is pushing for a constitutional revision instead of a constitutional convention. That group is led by former Democratic Assembly Speaker Bob Hertzberg and Republican Thomas McKernan, one of the directors of the California Chamber of Commerce. The group is funded by several foundations, including The California Endowment and the Evelyn and Walter Haas Jr. Fund.
The two outfits mostly disagree about the process. Here are just some of the ideas most likely to be taken up by a constitutional convention, or in a constitutional revision, should it get that far.
• California is one of only three states in the nation that requires a two-thirds vote of its lawmakers to pass a spending plan or to raise taxes. (The others are Rhode Island and Arkansas.) Changing the two-thirds vote to pass a budget seems to be at the top of the list for every reform group I talked to. But both Grubb and Hertzberg agreed that they would not recommend trying to change the two-thirds vote needed to raise taxes. Grubb said changing this provision of the constitution would probably be unpopular with conservatives.
• Although it was shot down as part of Proposition 1A this spring, a constitutional convention might revisit the idea of a spending cap for state expenditures. There might be a resolution to switch to a two-year budgeting cycle. And overall, the convention may want to scrub the constitution of many of its built-in budget rules. DeSaulnier said that when he came into the state Senate, he learned that the state Legislature has complete control over only about 7 percent of the state’s budget. The rest is controlled by voter-approved measures, like Proposition 98, which sets minimum education-spending levels each year. “I think everything that deals with money should be removed from the constitution and moved into statute,” said Paul.
• The convention may want to revisit California’s system of term limits, which critics say has robbed the Legislature of much of the institutional knowledge it used to have. By the time lawmakers learn how to govern, the argument goes, they are termed out.
• There are many proposals to reform the ballot-initiative process. “We have to change the initiative system so that it’s something like what Hiram Johnson wanted it to be,” said DeSaulnier. Meaning, a way to protect people from the wealthy special interests, not the other way around. DeSaulnier has introduced legislation to create the same “indirect initiative” process found in some other states. The indirect-initiative process allows the state Legislature to review ballot measures submitted by citizen groups and to try and satisfy the citizen sponsors by passing legislation through the statehouse. If the lawmakers and the citizens can’t come to an agreement, the ballot is still an option. Another initiative reform, from Common Cause, would allow ballot-measure petitions to circulate via the Internet. The idea is to help level the playing field between grassroots groups and interest groups that can afford to pay armies of signature gatherers.
• One popular idea is to rein in the state bureaucracy by allowing state agencies, boards and commissions to “sunset” out of existence after so many years, unless lawmakers prolong their lives with new legislation.
• Other possible reforms go to the fundamental structure of state government. One constitutional convention supporter, Lt. Gov. John Garamendi, has suggested the convention look at the idea of switching to a unicameral Legislature and doing away with the state Senate. He’s also suggested looking at the size of legislative districts. California has the worst representation rate of any state in the nation. In California, we have one Assembly representative for every 425,000 people. The average in statehouses around the country is one representative for every 40,000 people. “There are more Californians today than there were Americans in the 1870s,” remarked Paul. New America Foundation has also proposed an entirely new electoral system which includes a unicameral Legislature, smaller legislative districts and “proportional representation,” which would allow political parties other than the Democrats and Republicans a certain number of seats based on how many votes they get during any election.
Throw out the rules
Everybody likes the idea of reform in the abstract. But building broad support for particular reforms is an entirely different matter. “The devil is in the details,” notes Cressman. And while there’s no organized opposition to the idea of constitutional convention, there’s plenty of skepticism on the left and the right.
Del Beccaro is firmly opposed to messing with the two-thirds requirement to pass a budget or raise taxes. And he says the problem isn’t the constitution, it’s the tax-loving Democratic majority. “It’s not that our rules are so bad. I think there’s been a failure of leadership,” Del Beccaro explained.
And there’s some disagreement about whether a constitutional convention can truly be limited the way Repair California suggests.
“If an interest group wants to open up a constitutional convention and then wants to dictate terms, I’m not sure they can really do that,” said state Assemblyman Dave Jones.
Jones supports the idea of a governmental overhaul. He supports changing the two-thirds requirement needed to pass a budget and to raise taxes. But he also thinks any constitutional convention ought to look at some of the property-tax provisions of Prop. 13, particularly the restrictions it places on the taxation of commercial property. And he thinks a convention ought to overturn the constitutional ban on gay marriage, passed by voters last November. He’s not alone.
Gut Prop. 13, save Prop. 13. Gay marriage or no marriage. Ditch the two-thirds vote or not. Once you get into these very divisive issues, the idea of broad agreement seems less likely.
“The constitution is in dire need of major revision,” said professor Moylan. “But there are so many divergent interests, getting consensus is going to be really difficult. I’m not sure you’re going to have great success unless you can reduce the politics. And I don’t know how you reduce the politics,” Moylan explained.
It’s because of the time-consuming and potentially messy process of a constitutional convention that Hertzberg and the California Forward organization think the Legislature may be the quickest and safest route to reform.
They are campaigning to convince the Legislature to put a package of reforms on the ballot instead of waiting for the convention to play itself out. Under the plan, half of the reforms would go on the ballot in 2010, and half would go in 2012.
But the California Forward approach requires a little more faith in the Capitol than some are willing to give. Even Sen. DeSaulnier, who wrote the bill asking the Legislature to call the constitutional convention, is doubtful. “I don’t think institutional change is going to come from inside the building,” he explained.
But there’s no guarantee it will come from outside, either.
And Hertzberg acknowledges there’s no guarantee that the Legislature will do the right thing, as he sees it. “No, I’m not confident they will do it at all.” And if the Legislature won’t act, he says a constitutional convention may be the way to go. What worries him most is the idea of not acting.
“I’m afraid of a real meltdown. No one has had to deal with these kinds of challenges in California before,” said Hertzberg. California, with its energy crisis, recall election and financial meltdown, is in a period of major change, and so is the nation, Hertzberg said. Consider the 2000 election, the wars in Iraq and Afghanistan, and the remarkable election of the first African-American president.
“If you look at everything that’s happened in the last 10 years, it has been unbelievable,” he says. “Go down the list of all the fundamental changes. I think we’re in a time where all the old political rules are out the window.”
This story was originally published in the Sacramento News and Review.