Constitutional Convention

Can 'Average' Californians Manage a Constitutional Convention?

Steven Hill — Tue, 11 Aug 2009 01:25:00 -0400

As you ride the bus or freeway to work tomorrow, ask yourself: Can the person seated next to you, or driving past you, be trusted with the job of redesigning California's basic political and budgetary rules? Are "average Californians" ready to don the white powdered wigs to become the Founding Mothers and Fathers of a new California?

With efforts to call a constitutional convention picking up steam, a proposal for "citizen delegates" has generated considerable interest. Rather than holding elections or having state officials appoint the delegates, about 400 delegates would be randomly selected to produce a scientifically representative sample of all Californians. No political insiders or partisan apparatchiks need apply, just Golden Staters motivated by a sincere desire to help their state.

That's the theory, but could it actually work? Even if the citizen delegates were high-minded and lacking in partisan and personal agendas, are average people capable of the kind of in-depth understanding of complex issues necessary for redesigning California's basic institutions?

In short, I believe the answer is yes. Read my oped in the Sacramento Bee to find out more by clicking here.

Discussing Con Con In the Southland

Joe Mathews — Fri, 17 Jul 2009 14:28:00 -0400

There are two -- yes, two -- town halls in Southern California this weekend to discuss the idea of a constitutional convention. (Full disclosure: New America is a sponsor of one of them). The first is tonight--Friday night--in Santa Monica. Details are here. The second is Saturday at USC. Details here.

California Senate Majority Leader Endorses Constitutional Convention

Micah Weinberg — Fri, 10 Jul 2009 17:03:00 -0400

"If Madison was right about the need for well-functioning legislative bodies, and if society is losing them, then we would expect to see signs of the twin threats of which Madison warned - chaos and tyranny. Disturbingly, we do see those signs today."

These words were written by the Majority Leader of the California State Senate in a paper entitled, "The Dangers of Government Gridlock and the Need for a Constitutional Convention."

The Senate Majority Leader in question was Barry Keene and the year was 1992.

But this warning could easily grace the editorial pages of today as the state's leaders quaver on the edge of an even wider budget chasm and as the tide of discontent with the political status quo rises ever higher.

The familiarity of Keene's concerns - and he wasn't alone - belies the notion that our current problem are due to a recent rise in political polarization or a uniquely venal set of public officials. In fact, a constitutional revision commission was convened in the mid 1990s, though its sensible bipartisan recommendations were ignored by a state that was able to coast through a few more years of denial fueled by the tech and housing booms.

But after these gold rushes, we find ourselves in even more dire straits because the root causes of our problems will not go away for all of our wishing. In Keene's words:

"Some people argue that the problems of government are personal rather than structural. They say that our leaders do not lead, do not care or are crooks. But those charges beg the question - why do even the best people in government accomplish to little? The reasons are partly societal, as mentioned, partly attitudinal, as I will note, but mainly structural."

Some of the problems he identifies are endemic to the U.S. Constitutional system as a whole:

"The U.S. and California constitutions invite voters to elect legislative majorities of one philosophy and chief executives of another philosophy. The voters accept the invitation regularly. Enacting policy that moves in one direction, while implementing it in the opposite, virtually guarantees stalemate."

Conventional wisdom would suggest that our political problems primarily result from California-specific policy straitjackets we have buckled ourselves into - such as Propositions 13 and 98. But the current budget standoff between a Republican governor and Democratic legislature is just politics as usual in the checked and balanced American system.

Thad Kousser, Professor of Political Science at the University of California at San Diego made this exact point about divided government and gridlock in his presentation at a forum that the New America Foundation hosted on constitutional reform. It is also echoed within a paper from last fall by Eric McGhee of the Public Policy Institute of California on "Redistricting and Legislative Partisanship."

But as Keene saw then - and as many are observing now - some of our structural problems, if not entirely unique, are magnified dramatically in California. An excellent example is our extraordinary abuse initiative process. As Keene explain, the sentiments that have lead Californians to develop these patterns are understandable but these actions are ultimately self-defeating:

"The public sees that the state government is stalemated. People turn to initiatives that, with all of their failings, have the one apparent virtue the Governor and the Legislature often lack - they at least accomplish something. But in doing so, they drive the regular policymakers from the decisionmaking field; the initiatives' special-interest sponsors lock them into the constitution, or into initiative statutes that the Governor and Legislature generally cannot change in response to new circumstances or new public demands. Government becomes even more stalemated."

Many of solutions to this stalemate advanced by Keene would also look very familiar to the reformers of today. He advocates for better campaign finance laws, a streamlined and simplified constitution, and an end to incumbent-oriented redistricting.

California did managed to constructively address the last of these issues through the success of Proposition 11 last year. The campaign finance system, though, has become even more embarrassingly perverse since then; the constitution even more bloated and trivialized.

Perhaps, therefore, we will put in place some of the more fundamental changes Keene recommends including the restoration of political parties, perhaps even within a parliamentary system of government. My colleague Mark Paul and I have also recommended sweeping reforms such as the implementation of full representation within legislative elections. And we're not afraid of parties.

But beyond endorsing specific reforms both incremental and radical, the punchline of Keene's piece is his call for a constitutional convention:

"The structural roadblocks to legislative decisionmaking also prevent the Legislature from enacting most constitutional reform. This is why we need a constitutional convention in California and perhaps in other states."

Over the course of the past year, the Bay Area Council, a group of 500 CEOs, has issued another clarion call for constitutional reform. Some have expressed concern that the convention would get caught up in debates about social issues. Keene spoke to these concerns compellingly saying:

"The risk of a runaway state convention is minor, compared with the near-certainty of continued paralysis without one."

Californians are waking up to the need for fundamental structural reform. But there is no guarantee that they will have the right leadership to make these vitally necessary changes or the wherewithal to see the process through to its conclusion. Some still dither, worried about sacred cows that artificially distort tax rates or perpetually lock in funding for specific programs. But until we all let go of our policy prejudices, take a leap of faith with each other, and fix the structural problems that ail the state, things will continue to get worse. Barry Keene saw it in 1992; organizations like the Bay Area Council, the New America Foundation, California Forward and the William C. Velasquez Institute see it today.

Or, on the other hand, we may live in denial for a few more years; after all, our once great state, was once very, very great and has not yet completely rotted to the core.

Why Constitutional Convention Must Consider Prop 13

Joe Mathews — Fri, 03 Jul 2009 23:22:00 -0400

New America senior scholar Mark Paul, writing at Calbuzz, makes a very strong case for making sure that Prop 13 is considered by a constitutional convention.

Given its centrality to governance in California, it's shocking that drafts of the initiative to call the convention specifically keep Prop 13 out of it. And pointless, too. Like putting together a meeting to discuss football but saying you won't mention the passing game.

California Forward: Constitutional Convention Too Slow

Joe Mathews — Mon, 29 Jun 2009 17:24:00 -0400

Former California Assembly Speaker Bob Hertzberg, chair of the new reform organization California Forward, deals a blow to the idea of state constitutional convention in today's Sacramento Bee. He says a convention couldn't produce change until 2012, and the state can't afford to wait that long. Instead, California Forward wants to give the opportunity for the legislature to act on various reform measures. If they don't, the measures will go on the ballot next year.

Reviving an Old Reform Plan

Joe Mathews — Mon, 15 Jun 2009 22:06:00 -0400

Over at Fox & Hounds Daily, Joel Fox writes about a California legislator's proposal to dust off a forgotten constitutional revision plan from the mid-90s. The plan, produced by a commission put together by then-Gov. Pete Wilson, never went anywhere because it was introduced during the summer of an election year. But reviving it is an intriguing idea -- as a vehicle for constitutional reform both faster and less risky than a full-blown constitutional convention.

The California Supreme Court Offers A Suggestion for Constitutional Convention

Joe Mathews — Tue, 26 May 2009 18:58:00 -0400

The California Supreme Court's decision today to uphold Prop 8 is more about the California constitution and the initiative process (the true winner in the case) than it is about same-sex marriage. In effect, by a 6-1 vote, the court makes plain that it would have loved to overturn Prop 8--but couldn't because of the constitution.

And in the following passage from today's decision, the court seems to offer a suggestion to advocates of a constitutional convention: that the state needs provisions limiting the ability of the people to change certain parts of the constitution by initiative. The political problem with this is, of course, that advocates of such a convention desperately want to avoid having issues like same-sex marriage brought into the debate over a convention.

Anyway, here's the relevant passage:

"The constitutions of a number of other states contain express provisions
precluding the use of the initiative power to amend portions or specified
provisions of those states' constitutions (see, e.g., Mass. Const., amend. art.
XLVIII, pt. II, § 2 ["No proposition inconsistent with any one of the following
rights of the individual, as at present declared in the declaration of rights, shall be
the subject of an initiative . . . petition: [listing a number of rights, including the
rights to just compensation, jury trial, and protection from unreasonable search,
and the freedoms of speech, assembly, and of the press]]; Miss. Const., art. 15,
§ 273, subd. (5) ["The initiative process shall not be used: [¶] (a) For the proposal, modification or repeal of any portion of the Bill of Rights of this Constitution"].) In contrast, the California Constitution contains no comparable limitation. In the absence of such an express restriction on the initiative power, and in light of past
California authorities, we conclude that the California Constitution cannot be
interpreted as restricting the scope of the people’s right to amend their
Constitution in the manner proposed by petitioners.

Support for Constitutional Convention Among Gubernatorial Candidates

Joe Mathews — Thu, 21 May 2009 15:08:00 -0400

Calbuzz surveys the 2010 gubernatorial contenders in California and gets a lot of support for the idea of a constitutional convention.

Splitting California In 2

Joe Mathews — Wed, 29 Apr 2009 05:16:00 -0400

As Hitchcock knew, the fear of the unknown and the unvisible is the most powerful form of fear. I feel the same way about California. It's hard to know what happens if the special election measure goes down, legislative gridlock returns, and the state's fiscal crisis deepens.

One likely effect: some fairly wild ideas for changing the state will get more attention. Look for more scrutiny of a constitutional convention, the repeal of Prop 13, or even a break-up of the state.Above is a rendering of the two states that would be created under a plan being advanced by Central Valley agricultural interests. This "Downsize California" effort (a link to their site is here) would split the state into Coastal California and Renewed California.

Constitutional Convention: What History Teaches

Steven Hill — Wed, 25 Mar 2009 23:11:00 -0400

from the Sacramento Bee, www.sacbee.com/opinion/story/1717487.html

A constitutional convention has been proposed by some California business leaders as a vehicle to fix the Golden State's deeply entrenched political and economic woes. While a convention offers the hope of a new beginning, it also inspires understandable fear that hard won rights may get trampled in the horse-trading. The state's leadership in recent years has hardly inspired confidence. Why should we imagine that it could match the brilliance of James Madison, George Washington and the other Founders, and chart a new course for our state?

The first thing to recognize is that the Founders were not as brilliant as the mythmakers would have us believe. Their initial design of government -- the Articles of Confederation -- was a timid attempt at national governance, more dysfunctional than California's government today. To their credit, once they realized their design had faltered, they were bold enough not merely to tinker around the edges. They had the courage to fix their eyes on a new horizon, completely redesigning their existing governmental structures to create Version 2.0, which became an inspiration to the world.

But birthing a new form of government did not occur without labor pains. During the Constitutional Convention of 1787 in Philadelphia, scholars such as Yale University's Robert Dahl have shown, the Constitution was hashed out by delegates who were thoroughly confused and at times beyond their depth. The meandering trail of proposals for electing the president, for example, revealed a divided and fumbling body.

Starting in mid-May 1787, the delegates debated several different methods for months, changing their minds incessantly and finding no consensus. On three occasions during July, the delegates voted for the selection of the president by "the national legislature" -- what we know today as a British-type parliamentary system.

But apparently this proposal didn't satisfy, so over a hot, muggy August, other proposals from subcommittees were thrust forward and defeated. As late as August 24, despite mounting pressures to complete their work and return home, the delegates still had not settled upon a final proposal for electing the president. Running out of time, the delegates turned the dilemma over to yet another committee.

By Sept. 4, this committee recommended a solution the delegates already had rejected - that the executive be chosen by electors appointed by state legislatures. Two days later, they tweaked the proposal yet again, so that instead of the state legislatures automatically appointing the electors, legislatures were allowed to choose the method for selecting the electors - the practice we still use today.

Finally the weary delegates, who had been meeting by that time for nearly four months away from hearth and kin, adopted this compromise with nine states in favor and two opposed. Ten days later, the Constitution was signed and the convention adjourned.

To observers like Dahl, what the torturous record of proposals and counterproposals suggests is a group of baffled, confused, even floundering men who settled on a solution more out of desperation than confidence. Like the formation of the Senate, the American method of choosing the president was not founded on constitutional theory, high principle or brilliant design. The Founders simply ran out of time and ideas.

It's important to emphasize the confusion -- rather than the brilliance -- that reigned at the Constitutional Convention for a few reasons. One, it shows that designing a new system involves uncertainty and a degree of bewilderment, no matter how talented the people in the room. If we overeulogize the Founders and make them seem so brilliant and California's "new Madisons" so dim by comparison, it's kind of a setup for saying a constitutional convention in California will probably fail.

Second, if we recognize that the Founders were not so brilliant after all, or at least were quite confused amid their brilliance -- yet they plunged forward anyway -- that is a far more powerful message for us to ponder. It means they courageously embarked on substantive overhaul of their key institutions despite their lack of clarity and consensus over what the final product would be. They didn't just tinker around the edges because they had the certainty that the status quo was no longer acceptable.

That should give Californians the fortitude to know that, while we may not be completely clear on where we are going, like the Founders, we can be clear that we must push forward nonetheless. We should be emboldened to think outside the usual boxes, putting on the table substantive reforms like proportional representation, a unicameral legislature, lowering the two-thirds threshold for enacting budgets and taxes, and more.

While it may not be obvious right now who are California's Madisons, Adamses and Jeffersons, it would be a mistake to underestimate what California's leaders might be capable of producing if we dare to try.

Steven Hill is director of the Political Reform Program of the New America Foundation and the author of "10 Steps To Repair American Democracy" (www.10Steps.net).