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Could a Constitutional Convention Break California’s Impasse?

The state is ungovernable for many reasons. Republicans know that California is getting younger and browner (and therefore more liberal), so they bitterly cling to the two-thirds budget rule – starving the state into oblivion.
California State Senator Loni Hancock

California State Senator Loni Hancock

“California is ungovernable,” said State Senator Loni Hancock at the state Democratic Party’s E-Board meeting last month – as she bemoaned the fiscal paralysis in Sacramento. We all know that eliminating the two-thirds requirement to pass a budget is essential. But rather than just amend the Constitution, liberal bloggers at the Courage Campaign are teaming up with the pro-business Bay Area Council to push a constitutional convention. Their argument is that California’s constitution is broken on so many levels – that we should just rewrite the damn thing.

A “constitutional convention” brings to mind images of men in powdered wigs signing old parchments, but the reality is that other states have held such conventions – as recently as 1970. A more serious concern is how California will structure such a convention and what would come out of it, not to mention selling the voters that (a) we need it and (b) the end product should be ratified – before anyone even knows what that will be. For progressives, a constitutional convention seems a little abstract – whereas rallying for specific changes appears far more tangible and appealing.

The state is ungovernable for many reasons. Republicans know that California is getting younger and browner (and therefore more liberal), so they bitterly cling to the two-thirds budget rule – starving the state into oblivion. Rigid term limits mean that politicians only look at quick fixes before running for higher office. Prop 13 has decimated the state’s ability to raise its most stable source of revenue, while cities are barred from passing taxes or bonds without voter approval. Budget set-asides have put the state finances on autopilot, while California has dipped to 47th in school funding.

California’s constitution is the third longest in the world (after India and Alabama) – and has been amended well over 500 times. Only the voters can change the constitution, and the courts have broadly construed their power to pass amendments – even if it means taking away rights from a minority like Prop 8. Rather than pass amendments to the Constitution one ballot at a time on an incremental basis, “throw the whole damn thing out” is tempting.

But the Constitution is vague about the process. Two-thirds of the state legislature must call for a convention, but then the voters must allow it to go forward. Delegates at the convention get to draft a new constitution, which only goes into effect if the voters ratify it. Who runs the convention? How are delegates chosen? What – if any – agenda must the delegates follow, and what issue are on – or off – the table? The Constitution is silent on all those questions, leaving backers of a convention proposal to flesh out the details.

Even those pushing for a constitutional convention admit getting two-thirds of the state legislature to call a convention – let alone agree on details – is impossible. State Senator Mark DeSaulnier likes it, but the rest of Sacramento’s leadership is non-committal. So proponents say we must pass a constitutional amendment in 2010 that would allow the voters themselves to call a convention – and then have the voters pass such a proposal.

Two propositions just to start the process? The good news is they could probably be on the same ballot, so we wouldn’t have to wait for two election cycles to kick it off. In other words, proponents would campaign on “Vote Yes on Propositions 15 and 16” (for example) – and if both pass, we would have a convention to draft a new constitution.

But then we would need at least one – probably two – election cycles before we have a constitution that fixes our profound problems. The voters eventually must ratify whatever the convention produces – which means at least another proposition. And if we want at least some delegates to be elected by the people – so that they have a base constituency who can hold them accountable – that would require another election to choose them.

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Want a budget that only requires a simple majority of the state legislature – so the right-wing Republican minority doesn’t hold the state hostage? If we call a convention, that won’t happen until at least 2014 – unless the state calls a special election at one point.

What if we don’t elect delegates to speed up the process? Do we want the convention to be made up of political appointees (like the UC Board of Regents or the CPUC), who are more accountable to the powers that put them there? A convention must also reflect the state’s diversity – or else the entire process is questioned. One idea being floated around is to randomly select citizens to be delegates – like jury duty. That sounds totally insane.

Would electing delegates mean that interest groups would try to influence the outcome? Of course, but at least there will be some degree of accountability. Candidates could run for delegate on a platform of what they want to see in the constitution. Given the number of delegate positions, we will probably see a lot of “slates” forming – and I wouldn’t be surprised if the Democratic and Republican parties would endorse various candidates.

And what if – after a two-year process – the delegates draft a constitution, but the voters reject it? After our last constitutional convention was ratified in 1870, there have been six failed efforts at passing a new constitution – in 1897, 1914, 1919, 1930, 1934, and 1947. In a diverse state like California, any “consensus” agreement that comes out of the convention – and is substantially different from the current constitution – is bound to have some opposition. Voters don’t pass propositions they don’t understand, and a new constitution that is the complicated product of a compromise will face an uphill battle.

It is why I am currently inclined to oppose the idea of a convention. We can still pick key parts of the constitution that are flawed – and run statewide initiative campaigns to change them. Scrapping the two-thirds budget rule is obvious, and reforming Prop 13 to exempt commercial property is imperative. Repealing Prop 8 is a no-brainer, and I would love to make Prop 218 history. Reforming the term limits law to bring more balance is also needed.


California is in such a crisis that I understand and appreciate the sentiment behind more fundamental reform. But “blowing up boxes” did not work for Schwarzenegger when he proposed a special election in 2005, and I’m skeptical that voters would go along with a brand new constitution. For now, it seems better to wrap our fingers around tangible problems that make California ungovernable – and work to get them reformed. And progressives who have no idea what comes out of a convention would probably agree.

Paul Hogarth

Republished with permission from BeyondChron.