Does California Need a Constitutional Convention?

San Diego Hears from Advocates at August 1 Meeting

by MARK GABRISH CONLAN

Copyright © 2009 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

PHOTOS, top to bottom: Matt Regan, Thad Kousser, Xandra Kayden, Gregory Morales

The last time California had a convention to rewrite its constitution, the year was 1878. The convention had no women, African-American or Asian-Americans as its delegates, and exactly one member was Latino. Its product included a prohibition against offering paid employment to any Chinese immigrants. Though various changes, some of them quite sweeping, have been made to the California constitution since — the referendum, initiative and recall in 1910; establishing a full-time state legislature in 1966; and Proposition 13, limiting both overall property taxes and the ability of local governments to raise money, in 1978 — there hasn’t been a full-scale convention since 1878-79. Yet the state’s most recent budget fiascoes are convincing a lot of activists that one is needed now — and a coalition promoting the idea came to San Diego August 1 as part of a series of statewide meetings to build support for the convention.

Though the organizers of the meeting — which drew over 100 people to the community room of the Mission Valley Library and forced latecomers to fetch their own chairs or lean against the wall — included the San Diego chapters of the American Constitutional Society, Common Cause, the League of Women Voters (LWV) and Mexican-American Political Association, the dominant force in the meeting was the Bay Area Council. Composed of CEO’s and other high-level businesspeople including the heads of Google and Chevron, the Bay Area Council called for a constitutional convention after finding that California legislators weren’t paying attention to them during their annual August lobbying trip to Sacramento in 2008 because they were still deliberating on the state budget well over a month past deadline.

Matt Regan, the Bay Area Council’s director of government relations — who quickly emerged as the meeting’s dominant speaker even though three other presenters appeared — recalled that in August 2008 the Bay Area Council sent a delegation to Sacramento to meet with the so-called “Big Five” — Governor Schwarzenegger and the Democratic and Republican leaders in the state legislature — thinking that by then, over a month after the constitutional deadline for the state to pass a budget, the governor and legislators would be ready to consider other issues. Instead, Regan recalled, “Nobody wanted to talk about the issues. The Big Five all wanted to talk about the budget — and they all wanted to apportion blame. It was very embarrassing. Senator Don Perata spoke to us and said, ‘You know what? We need a constitutional convention! This doesn’t work anymore!’”

According to Regan, the Bay Area Council took Perata’s suggestion and ran with it. “We did a lot of research about best practices [about constitutional conventions] in other states,” Regan recalled. “Our CEO, Jim Wanaman, wrote an op-ed in the San Francisco Chronicle calling for a constitutional convention. This had an amazing response. Our phones rang off the hook. We were a little perplexed, so we started making phone calls to Common Cause, the League of Women Voters, the New America Foundation and others, and built a coalition of like-minded reform folks that agreed that California’s government is fundamentally broken and needs reform.

Once they called their coalition together, Regan said, the two big questions they had to address were how to select the people who would make up the constitutional convention and how to decide what they would discuss. After studying laws in other states — some of which, including Illinois, Hawai’i, Alabama and Connecticut, require the voters to decide at 20-year intervals whether or not to have a constitutional convention — as well as the Canadian province of British Columbia, which had a successful constitutional convention two years ago, the Bay Area Council decided against either electing delegates to the convention or having existing government officials appoint them.

“If you have an elective body,” Regan explained, “public-employee unions, business groups, social conservatives and Howard Jarvis-type [anti-tax activists] will run their own candidates — and it will look like the state legislature, and be about as functional. We looked at appointed experts and decided it would get very complicated and be difficult to explain to voters.” Instead, Regan said, his group came up with the idea of picking people at least to some degree at random, on the model of the way grand juries are appointed. The state would go through voter registration rolls and Department of Motor Vehicles registrations and pick 200 people in each State Assembly district, who in turn would caucus and select 10 of their number to be delegates to the convention.

As for what the convention would discuss, Regan explained that his group wants to focus it exclusively on the structure of government. “It will not address the social issues,” he said. Items like the current California constitution’s right to privacy, which infuriates the Right because it guarantees women freedom of reproductive choice; or Proposition 8, the recently approved ban on legal recognition of same-sex marriage, which similarly angers progressives and Queers; will be off the table. What will be on the table, he explained, is just about everything government scholars have claimed has hamstrung California’s decision-making: ballot-box budgeting initiatives like Propositions 98 and 42 (which locked up great chunks of California’s tax revenue for education and transportation, respectively); term limits on legislators; the two-thirds vote requirement to pass a state budget or to raise taxes; and even the still-popular Proposition 13.

Because the current constitution allows a convention to be called only by a two-thirds vote of both houses of the state legislature, Regan explained, his group will have to circulate signatures for two initiatives. One, Proposition 1A, would amend the existing constitution to allow the people to call a convention by majority vote. The other, Proposition 1B, would actually call for the convention and set the rules by which its delegates would be appointed and what issues it could address in the final document. Once the convention finished its work, its draft constitution would still have to go before the voters for final approval — and, Regan said, the need to come up with a document that would be politically palatable to the state’s electorate would itself act as a brake on some of the wilder notions convention delegates might have.

Besides Regan, other speakers on the panel included Thad Kousser, associate professor of political science at UCSD and board member of California Common Cause; Xandra Kayden, former president of the Los Angeles League of Women Voters and a participant in one of the commissions that revised the Los Angeles city charter; and Gregory T. Morales, member of the Mexican-American Political Association (MAPA) in San Diego. Kousser, listed on the meeting’s call as the M.C. (though actually Jeannie Brown of San Diego Common Cause and the League of Women Voters, filled that role), thanked the overflow crowd for coming out on a warm San Diego Saturday to discuss “a problem that couldn’t be more important: making California work again.”

Kousser discussed the differences between the U.S. and California constitutions, noting that the California constitution is so long it’s an entire book in printed form; he showed a copy of the book and then the little pamphlet version of the U.S. Constitution he was using as a bookmark in it. The reason the California constitution is so big, Kousser explained, is that a lot of it isn’t about the overall structure of government or safeguarding people’s rights. Rather, it’s full of basic legislation that in a more rational system, like the U.S. government, is dealt with exclusively in statutory law that can be amended easily. The California constitution, Kousser said, “has one article exclusively about motor vehicle fees, and another about usury.”

Another distinguishing feature of the California constitution, Kousser said, is the ease with which it can be amended. While the U.S. Constitution has been amended only 19 times during the 222 years it’s been in effect, Kousser explained, “the California constitution makes itself easy to be rewritten. The first way to change it is by simple amendment by a majority vote in any statewide election. You can put it on by an initiative or the legislature can put it on by a two-thirds vote of each house. The second way is by a constitutional revision commission, a panel set up by the legislature, whose recommendations are then put on the ballot by the legislature and voted on by the voters.” This route worked in the 1960’s, Kousser explained, when the revision commission’s recommendations easily passed the legislature and then went before the voters and were enacted — and failed in the 1990’s when they couldn’t get the needed two-thirds vote of the legislature even to allow the people to consider them. The third way, he added, is a constitutional convention.

Like Regan and Kousser, Xandra Kayden, the third speaker on the panel, also declared in favor of a constitutional convention. “The genius of American society throughout history has been our ability to change and evolve,” she said. She compared the current historical moment to the first two decades of the 20th century, when two competing reform movements — the progressives and the populists — sought sweeping changes in American government to control the power of large corporations and the federal government. The populists, Kayden argued, were mostly small farmers in the Midwest and South, while the progressives were mostly small businesspeople who were losing both income and social standing to nationwide corporations.

“Both [the progressives and the populists] were against the concentration of power in large corporations and the federal government,” Kayden said. “The main development of their movements was direct democracy: the referendum, initiative and recall. It put power back in the hands of the people — and it worked well, largely because it was little used, until the middle of the 20th century.” As California grew from, as Kayden put it, “just another big Western state to the personification of the American dream,” more and more initiatives proliferated on the California ballot. Political writer David Broder wrote a book about the process, Democracy Derailed, in which he said that the widespread use of initiative had turned California from a government based on laws to “laws without a government.”

What’s more, Kayden argued, the initiative changed from a control on special interests to a tool for them. The reason was that, as California grew, it got harder and harder to qualify an initiative based on grass-roots efforts alone. Today, she said, it’s estimated that you need $1 million just to get an initiative on the ballot — mostly to hire people to stand outside shopping malls and other gathering places and get paid so many cents per signature — let alone the additional cost of campaigning. (In California’s most expensive initiative campaign, over the anti-marriage Proposition 8 in November 2008, each side spent $40 million.) “Not many ordinary, everyday people who aren’t engaged in major money-making activities can afford to get something on the ballot,” Kayden explained.

Another problem with the initiative system is that, once something gets on the ballot, the voters have only two choices: yes or no. “The federal constitution presumes that interests will compete, but eventually work out a compromise that creates consensus,” Kayden said. “Initiatives write into the state constitution something that maybe should be more flexible. They don’t promote compromise. You either win or lose — and if you lose, you get angry.” Kayden added that many initiatives are so complex even the volunteers of the League of Women Voters, whose mission includes explaining them to us and giving us information about what a vote either way will mean, don’t read them word-for-word; instead, they sometimes endorse initiatives based on who’s for them and who’s against them.

Besides the initiative, Kayden said, her group is “also concerned about the two-thirds budget rule and the tyranny of the majority.” California is one of only three states in the U.S. — along with Arkansas and Rhode Island — that require a two-thirds vote in each house of the legislature merely to pass a budget, though about 15 states have a two-thirds vote requirement to raise taxes. Kayden argued that this gives the minority party in the state legislature — currently the Republicans — no incentive “ to try to build a majority; they just have to hold one-third.”

Kayden’s other complaints about the current California constitution include a “rigid and inflexible” tax system — largely the legacy of Proposition 13, which by capping property taxes forced the state to rely on the much more volatile income tax, and pushed cities and counties to seek shopping malls and retail outlets that generate sales taxes instead of factories and other types of businesses. She also faulted an education system that hasn’t taught most Californians just how their government works. She took issue with Erwin Chermerinsky, her former colleague in the effort to revise Los Angeles’ city charter, who wrote an op-ed in the Los Angeles Times saying that California needed constitutional change but the voters would never approve it. “This is something we all see,” Kayden said; we all know there’s a crisis in California, and the whole world knows it.”

The fourth panelist, Gregory Morales, was much more skeptical about a constitutional convention or even a major revision. He said that unlike his colleagues, he’d actually set out to read the entire California constitution cover-to-cover — even though he had to check out two books from a law library to do it: the 2008 edition of the constitution and a law book detailing the most recent changes. The exercise convinced him that there are a lot of good provisions in today’s state constitution and we need to enforce them before we rewrite the document — including a requirement that the state’s public schools be safe and a stipulation that the people, not the government or private companies, ultimately have jurisdiction over public utilities.

“MAPA would like to suggest that, as a first step, all of our policymakers actually read and apply the California state constitution,” Morales said. “The two-thirds vote requirement also applies to people who want to change the constitution and have good government that works for the people. I think the one thing two-thirds of the current public officials would agree on is to remove anyone who wanted government to work for the people.”

Morales’ skepticism about a constitutional convention and his cynicism about the motives of current government officials found an ironic echo in the handful of anti-tax libertarians and Right-wingers who attended the meeting and made it clear that they like Proposition 13, the two-thirds vote requirement to pass a budget and legislative term limits just fine. Two of them, Richard Rider of California Taxfighters and Jim Obenshain of the John Birch Society, handed out leaflets before the meeting. Obenshain’s was an attack on the idea of a federal constitutional convention which he said applied to the California one as well. “The whole discussion is premised on the basis that we need to rewrite the California constitution,” Obenshain said. “The one we have worked so well for so long, and it’s not working now only because the politicians aren’t following it.”

“Government is nothing more than a leviathan leech that lives off the production of others,” said Jesse Thomas. “Margaret Thatcher said socialism is great until you run out of other people’s money.”

Rider’s leaflet was a complaint that neither he nor anyone with similar politics was put on the panel — an issue he renewed when he spoke to the meeting. “When I looked over your slate of people, how many of you are opposed to repeal of the two-thirds requirement of passing a budget or raising taxes?” Rider said. “You’ve selected all people who want to raise taxes and increase spending.” As the only person in the room who had actually participated in an official effort to change the California constitution — a fact he mentioned on his leaflet — Rider was asked about that process. He explained that the constitutional revision commission he served on in the 1990’s “was put together by big-government Republican Pete Wilson. He appointed one-third of the panel, the Democrat State Senate” — using the truncated form of the Democratic party’s name which Republicans and Right-wingers prefer, much to the audible disgust of several members of the audience — “appointed one-third, and the panel was specifically convened to repeal Proposition 13.”

Rider explained that he only got on the panel because the California Assembly changed from a Democratic to a Republican majority during the process, and the newly elected speaker, Republican Curt Pringle, replaced six members with his own appointees, including Rider. “The measures did not go through because they did not get a two-thirds vote of the legislature,” he said.

“By the time the proposals got to the legislature, the economy was recovering,” Kousser added, suggesting that the demand for constitutional reform eased with the economic crisis. “Also, some of the proposals from the commission included a unicameral [single-house] legislature and some other pretty wild ideas that had no chance of passing a popular vote. The commission didn’t have its eye on public opinion.”

Regan said the work of the 1990’s commission “is sitting in binders in Sacramento, gathering dust. All of that work died because of the two-thirds vote requirement in the legislature. It’s living testimony to the fact that minority rule doesn’t work.”

Herb Shore, who introduced himself as part of the San Diego chapter of Democratic Socialists of America (DSA) — which provoked Rider to say that a one-on-one debate between him and Shore would have been more enlightening to the audience than the program they were actually getting — cited Grover Norquist, head of the Americans for Tax Reform and a major player in the Right-wing movement nationwide, and said that his dream of cutting the revenues available to government until it had to shrink so much you could drown it in a bathtub has “come true in California” thanks to Proposition 13, the two-thirds vote requirements and legislative term limits. “By the time any elected officials actually read the California constitution, they’ll be termed out of office,” he said. “I am in favor of a constitutional convention because California state government has become unfunctional.”

Marilyn Riley of the San Diego Democratic Club noted the irony that the push to call a California constitutional convention was coming from business leaders. “I’m not the most business-friendly person in the world,” she said, raising the issue that if the convention delegates are selected in a manner similar to grand juries, ordinary working people won’t be able to participate and the convention will be skewed — as grand juries and trial juries are — in favor of affluent and retired people.

“We fully understand that if this is business-led, it dies in the cradle,” Regan replied. “The first group that joined us is the Courage Campaign, an offshoot of moveon.org, which certainly isn’t an organization noted for getting into bed with business. We’ve certainly broadened our scope beyond the business community.”

Many audience members had questions about the total cost of the convention (between $25 and $30 million, Regan said), whether convention delegates would be paid (yes, but they haven’t decided how much) and protected against job loss due to attending the convention, how the convention will be staffed and who will be responsible for giving the delegates the background information on state government they’ll need to deliberate effectively. (Rider acidly commented that he suspected Common Cause and other supposedly “non-partisan” but actually liberal, pro-tax and pro-government spending groups will get that job.)

“The staff would be a largely neutral body,” Regan said. “They would bring drinks and documents.” Regan also compared the $25 to $30 million price tag for a convention to the $40 million it costs the state every day the budget is late — 22 days in 2009 and a whopping 81 days in 2008.

Kausser disagreed with Regan’s characterization of the convention’s staff as errand people bringing drinks and documents. “Staff often sets the agenda, including who’s going to address the convention,” he acknowledged. “One idea is a hybrid: a broadly representative group of people to staff the convention and present the alternatives, and the randomly selected convention delegates to make the final decisions.”

Asked if the convention advocates had considered “the unintended consequences of government growth,” Kayden replied, We know the consequences of what’s happening now. It isn’t working and people get hurt.”

“We currently govern by single initiatives,” Regan said. “The legislature is a toothless dog that has control of only 7 percent of the state budget. We pass initiatives that mandate spending but don’t provide funding. Through a constitutional convention, we would look at all the flaws of our governmental system, and limit those unintended consequences through a legal process.”