Constitutional Convention

New America senior scholar Mark Paul has a strong post on New America's political reform blog in which he rebuts claims that only the legislature can call a constitutional convention.

My old friend Bill Cavala has metamorphosed into such a creature of the Legislature –– “a veteran of over 30 years in Sacramento,” his blog taxonomy trumpets –– that the only explanation he can muster for those who believe Californians can bypass the Capitol to call a constitutional convention is that the reformers are “slow.”

It’s an odd charge coming from someone 98 years behind the times.

According to Cavala, the only legal path to a convention leads through the Legislature. Against all the lawyers who have opined that voters can give themselves the authority to put a convention call on the ballot, a power currently reserved to the Legislature, Cavala offers up the uncited authority of Joe Remcho, the famous political lawyer. Remcho, alas, is no longer around to tell us that approach would be struck down by the California Supreme Court as an impermissible “revision” of the constitution.

Not being a lawyer, I won’t join Cavala in making firm predictions about how the court would rule on that question. But as a historian and a long-time watcher of California politics and law, I do feel comfortable pointing out that, when the voters have horned in on the Legislature’s powers, the courts have almost always looked the other way.

Independent columnist Tom Elias, a leading voice on California political matters, comes out strongly against the idea of a constitutional convention in this column.

Joe Mathews, journalist, Schwarzenegger biographer, and New America Irvine Senior Fellow, recently shared his opinion on the prospect for a constitutional convention on the Fox and Hounds Daily:

 His two insights:

1.  A constitutional convention, while it would be difficult and dangerous, is something California should do. There is so much frustration with the status quo here, and so many different ideas about how to fix things, that we need a top-to-bottom review of our state constitution. We need to pare back the convention (it runs more than 150 pages), and look at all three branches - the legislative, executive and judicial.

2.  The Bay Area Council and other good government groups, in their heart of hearts, don't really want a constitutional convention. They want legislative reform - changes in how laws are made, budgets are passed, and lawmakers are elected.

That's an interesting perspective, one that reformers are going to have to address honestly as they move forward on this issue. 

Here's my column in today's Fox & Hounds Daily about the constitutional convention summit. After reflecting on the summit, I think that what the boosters of a convention really want is major legislative reform -- that is, changes in how the legislature works, how lawmakers are elected, and how initiatives are put together. Those are worthy goals, but a convention must be broader.

He explains why to George Skelton. The governor is interested in looking at changes to the requirement of a two-thirds vote of the legislature to pass a budget. But he also wants to transform the executive branch, which wasn't on the agenda of many folks attending this week's summit in Sacramento on the idea. Schwarzenegger wants to get rid of the independently elected constitutional officers -- the lieutenant governor, the attorney general, the controller, the treasurer -- who sometimes make it hard for him to administer the government.

As a policy matter, Schwarzenegger has a point. There'd be more accountability if the governor could appoint the people in those roles. As a political matter, Schwarzenegger may have hurt the convention effort by saying that. Opponents of the idea will deride the convention as a power grab by a governor whose approval rating is at 33 percent in a new poll.

The summit is wrapping up with a presentation from attorney Andrew Giacomini, managing partner of Hanson Bridgett, explaining the legal strategy for calling a constitutional convention without the participation of the legislature.

"Everything I'm telling you is subject to debate," Giacomini says, but he is pretty emphatic that he's right. Such a convention can be called with two initiatives. At first, probably in June 2010, backers of a convention could put an initiative on the ballot that would amend the constitution to permit the people to call a convention directy, without the participation of the legislature. He anticipates legal and political opposition, but isn't worried. "I think that's about as hard as fogging up a mirror with my breath," he says. The second initiative would ask the public to call the convention, and set out the agenda and the delegate selection options. This initiative could appear on the November 2010 ballot -- or on the June 2010 ballot alongside the first initiative.

He also outlined four possible approaches to how to pick delegates. 1. a direct election of delegates in existing districts (the current constitutional process), 2. a Prop 11-style approach, with a citizens commission. 3. a jury pool style approach, with citizens called at random, and 4. a process that includes a panel of experts. He doesn't suggest a favorite, but says a decision has to be made.

A good sign for proponents of a constitutional convention: the main controversy here is not whether to have a convention, but how to choose delegates?

All kinds of ideas are being thrown out, but there is one dividing line: whether elected officials should be permitted to be part of a convention. Panelists have argued for a populist vision, with regular citizens serving as delegates. Some say elected officials should be kept out of the situation. They're conflicted, is one argument. They're the prisoners of special interests, goes another argument.

But the idea of excluding public officials is not popular inside this ballroom. Many of the attendees -- perhaps a majority (It's hard for me to tell) -- are local elected officials who have been vocal in cheering each other.

Several speakers at the convention summit have raised the following program: how would such a convention engage a California public that is famously disengaged?

No one has a great solution. (There was a little talk about the Internet and Obama-style organizing). But the difficulty of engaging citizens is itself a strong argument for a constitutional convention. The convention itself would be so novel that, with a little bit of show biz (some ceremony, and you know your blogger's weakness for powdered wigs), it would attract attention and might, at the very least, teach people about their state and how it currently works. For the educational value alone, a convention might be worth having.

I'm attempting to blog over a questionable wireless connection from the summit on the California constitutional convention summit today in Sacramento.(Full disclosure: New America is among the sponsors). It's a full house, standing room only in the basement ballroom of the Sheraton.

A quick bit of news: Lt. Gov. John Garamendi, a candidate for governor next year, came out strongly in favor of major changes in the legislature, including eliminating one of the two houses and increasing the number of lawmakers (by more than double).

Also, the Bay Area Council, the business-backed policy organization that's been pushing the idea of a convention, disclosed results of a poll on the idea of a convention. The news: only 3 percent of those surveyed had heard "quite a bit" about the idea. When people were read a description (that didn't include much criticism of the idea and emphasized that voters would get to sign off on whatever a convention recommends), the idea of a convention had modest support.