May 20, 2009

Steven Mayer authors article "California's Government is Broken - But Could a Convention Fix It?"

Arnold & Porter Article

By Steven Mayer

Daily Journal
May 20, 2009

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 the California Constitution blog.

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