The New America Foundation sponsored a program and a lunch (thanks for food) regarding the topic "California v 2.0: The Roads to Fundamental Reform."  Everybody there knew this was a promo for the idea of a constitutional convention.  Panelists from the Bay Area Council, California Forward and the New America Foundation all are in favor of a convention.  Other than some general assumptions about gridlock, partisanship, governance failure, and political malaise, they did not present any specifics on what the problems are, nor any proof that the Constitution has to be rewritten in order to solve these non-specific problems.
 
In fact, one of the panelists, Dr. Thad Kousser of UCSD, spoiled the party by offering proof that California government was neither in gridlock nor overly partisan, but merely reflecting the expectations of the voters.  He did offer that the years of the worst gridlock occur when the state has a governor of one party and a legislative majority held by the other party.  Of course, the only way to eliminate that possibility is to switch to a parliamentary system of government that combines the legislative and executive branches, but nobody suggested that.
 
What struck me was that these foundations appear to have lots of money and want to spend that money doing good.  Since people’s opinions vary so widely on what would be "good," they have skipped over the definition of the problem and lightly passed over the proposed solutions in order to jump straight to "process."
 
"Process" is fun to talk about when you have no stake in the outcome.  So we heard experts explain that we could expand the power of the initiative beyond what was placed there in 1911 to give the voter the power to call a constitutional convention.  They also explained that the call to a convention could be limited in scope.  Of course, this all assumes that the legislature would never pass any solutions of its own nor call a convention as it is empowered to do. 

Further reflecting the distrust of the elective process, the Bay Area Council is proposing that we empanel a Gigantic Jury of 400 Californians who would be called and then tasked with rewriting the Constitution which would then be presented to voters for approval.  Discerning voters will want to know who is the staff for this Jury, just like it is important to know who is the District Attorney who staff real Grand Juries.  400 Californians who yesterday were minding their own business and today carry all hopes of saving state government might choose to rely a lot on the staff experts.  Even if the jury is unbiased, what of the staff?
 
Clearly, Californians do have a stake in this process and there is a great deal of interest in what solutions would be proposed.  Ideas mentioned by the panelists included: eliminating the 2/3 vote requirement to raise taxes; eliminating the 2/3 votes requirement to pass a budget; repealing term limits; increasing the size of the legislature and having multi-member districts; and establishing regional governments.  I can only guess that the proponents of these ideas believe that government moves too slowly with too many checks and balances and needs to be sped up. 
 
I do not believe any of these proposals would be approved by the voters if they stood alone.  Perhaps the biggest difference between a legislature and a constitutional convention is that a convention can vote trade.  Vote trading, or log rolling, is where one group of conventioneers in order to get their idea into the package, agree to vote for someone else’s idea that they are indifferent to.  It is how we got the U.S. Senate sharing power with the U.S. House of Representatives.  Or in today’s controversies, I could see Cal-Tax supporting the same-sex marriage agenda as long as the anti-Prop. 8 delegates support a 2/3 vote on taxes and fees.  I will scratch your back and then you scratch mine.  Whether the voters ever approve any package of any kind is doubtful, but the plan is to call the convention in 2010, rewrite the constitution in 2011, and put it to the voters in 2012.
 
Another big topic was the question of limiting the call to convention.  It is easy to write that the convention cannot touch Proposition 13, but I do not believe it.  All state-local government relations are wrapped up in the laws that implemented Prop 13.  If Prop. 13 is not on the table then the convention cannot discuss local government, home rule, local raising of taxes, or regional government.  I do not like the line in Prop. 13 that authorizes the legislature to twist the property tax distribution formulas as it was not meant to be used that way.  I would just as soon take that power away from the legislature, but to do that is an amendment to Prop.13. 

By the way, with all this discussion of Prop. 13 no one even mentions the 1972 Supreme Court decision of Serrano vs. Priest that destroyed the locally controlled school finance system and moved it all to the state for a one-size-fits-all system that ignores local issues.  Maybe we should add bad Supreme Court decisions to the convention agenda.
 
Left unclear is what might happen if the Jury decides to go ahead anyway and rewrite Prop. 13.  Would the courts or the Secretary of State stop them from putting it on the ballot?  Or would the voters be permitted to decide for themselves?  The Jurors may decide on their own to focus on certain areas of the Constitution, but I doubt if they can be bound by a limitation in the call to convention.
 
As I considered the idea of limiting the convention, it also seems important that the call instruct the Jurors on what the problems are that need solving and maybe even ideas on how to solve them.  I have yet to see any language, but I believe that the drafters of the initiative to call a constitutional convention by initiative owe it to the voters to announce why they think the Constitution needs to be revised and what revisions should be considered first.  So far, this has not been done.
 
Fred Silva of California Forward summed it up correctly.  This is about the balance of power.  I will shorten it: this is about power.  Who has power over others, or other governments, and what limits, if any, are there to restrain it.  Silva is open that local governments should have more power and the state government should have less.  It is still up in the air if California Forward or any other interest group can propose a common sense package on how to achieve this with the least unintended consequences.
 
I served on the 1996 Constitutional Revision Commission.  We were appointees and had no power on our own.  We did not even have a budget to explain our recommendations to the governor, the legislature, or the people.  If this Bay Area Council idea of a Jury goes through, they will have a similar problem.  While they may have the power to get a revision onto the ballot, the 400 person jury will not have the resources to explain to the Bay Area Council or the voters why they made certain compromises and failed to make others.  All in all, that is probably a good thing.
 

This entry was posted on Monday, June 22nd, 2009 at 12:00 am and is filed under Blog Posts.