People seemed to really engage with this post about a Constitutional convention, so I wanted to follow up with some of my thoughts for what a convention could tackle and what it could look like. As it happens I attended a town hall meeting about a proposed ConCon a couple weeks ago in Santa Monica, featuring Bob Stern of the Center for Governmental Studies, Jim Wunderman of the Bay Area Council, Steven Hill and Mark Paul of the New America Foundation, Asm. Julia Brownley (AD-41), Santa Monica Mayor Pam O’Connor and LA City Councilman Bill Rosendahl.
At the root, a Constitutional convention must concern itself with restoring confidence in government. Right now, that’s at an all-time low, especially after budget agreements hashed out in secret that defy the will of the people and an erosion in the public trust in lawmakers to do the right thing in Sacramento. Government is not responsive, in fact in many cases it cannot Constitutionally be responsive to the popular will. The institutions have become paralyzed and captive to special interest lobbying. We have ten lobbyists for every legislator in Sacramento. And we have turned over the reins to a new branch of government, the ballot, and anything significant must be mandated by a vote of the people. As Julia Brownley, now in her second term, said, “Government structure is broken and we need to fix it… I didn’t understand until I set foot in the Legislature the paralysis and gridlock that kills the system.” I think Sen. Mark DeSaulnier, who is carrying Constitutional convention legislation in the Senate, put it well when he said that California remains at the vanguard with anything that can be accomplished on a majority-vote basis. Anything with a 2/3 threshold, in other words anything fiscal, is a mess. And it needs to be solved.
So how would a convention, the first of its kind since 1879, be structured? (flip)
Right now, only the Legislature, with a 2/3 vote, can call for one. But the Bay Area Council and others who have studied this believe they can go to the ballot with two measures – one changing the Constitution to allow the people to call for a convention, and another to call for one. These can even be accomplished on the same ballot; while some have raised legal objections to this, this is pretty much how a recall election works, with the recall and replacement on the same ballot. Those who want to maintain the status quo because it works for them may disagree, but the California Supreme Court has clearly shown very wide latitude on votes of the people under the current system.
Other major issues to be hashed out with a convention are the scope and the delegate selection. Jim Wunderman of the Bay Area Council has said that everything within government should be on the table, which worries some that a Pandora’s box will be open, an opportunity to mess with fundamental rights. First of all, that’s the case right now, as last November proved. Second, I do believe there would be eventual problems with any document that nullified rights granted by the federal Constitution (the basis of the current Prop. 8 lawsuit). What we’re really talking about with a convention is a process to create a more sustainable structure, dealing with electoral issues, governance issues, fiscal/budget issues, and direct democracy issues. That’s a fair bit of territory, and I don’t see any need to expand beyond that.
Then there’s the thorny issue of delegate selection. Steven Hill explains in a study of the issue that there are three basic means for selecting delegates: through appointments, through elections, or through a random selection consistent with state demographics. There are plusses and minuses to all of them, but Hill reasons that the appointment process could wind up looking like patronage, and the election process mired by our useless campaign finance laws. Both would fall to the whims of the current broken process and could be hijacked by special interests seeking input in the results of a convention. They would also wind up looking a lot like the Legislature, which doesn’t go far to renewing confidence and trust in government. So Hill falls on the side of random selection as the “least worst” option.
Pros: Random selection would be the best method for ensuring a representative body; random selection of “average citizens” brings a sense of grassroots legitimacy to the process, which would give the proposals of the constitutional convention credibility with the voters; random selection might be the best process for shielding delegates against special interest influence; random selection has the gloss of being something new and different, never been tried, and therefore may have the greatest potential to capture the imagination of the public and the media.
Cons: Random selection of “average citizens” would not necessarily guarantee sufficient expertise on the part of the delegates. A thorough educational process would be necessary, and it would be important that the educational process for delegates was designed to prevent “capture” by any particular special interest or perspective. The selection process would also need to weed out any delegates who are not are sufficiently committed to participate for many months.
I don’t think capturing the imagination of the media is a good reason to do it, but Hill has cited examples of citizen’s commissions in New Orleans after Hurricane Katrina, and in New York City dealing with the World Trade Center redevelopment, with fairly positive reviews.
I think where you fall along these lines can be best determined by your theories of government. If you think that the system needs to be gamed for particular outcomes, you probably want an election that would allow the participation of various special interests. If you believe that good government and progressive government are analogous, that an iron-clad structure itself need not be partisan, but just allow the prevailing philosophy of the majority to have sway over the results, you may be interested in a random selection based on demographics (and, I would add, party ID). Right now, we have a progressive legislature and a conservative system, which frustrates efforts at accountability. A small-d democratic system would not only be more fair than the current system of minority rule, and it would not only be more helpful for the voters trying to determine who is responsible for what happens in government, but it would actually be more fiscally responsible. The Two Santa Claus Theory that dictates we can have robust services and endlessly low taxes forces government to resort to borrowing and accounting gimmicks to cover deficits, which lead to larger deficits pushed out to the future. Spending mandates like Prop. 98 haven’t even worked to protect school funding – we’ve become the worst state on spending K-12 under that mandate. A clear set of rules that resists enshrining policy but allows policy to work unimpeded through a framework of government seems to be the best practice here.
Then there’s our failed experiment with direct democracy, which brought about many of the constrictions under which current government now labors, such as the crazy 2/3 requirements, which allow the majority to say that the minority blocks their wishes while allowing the minority to claim that they have no power because they’re in the minority.
What do I think a Constitutional convention needs to include?
• ending the 2/3 requirements and restoring democracy to the fiscal process over the tyranny of the minority, and returning decisions for spending and taxation to elected representatives
• two-year budget cycles and performance-based budgeting to try and engender a long-term approach
• indirect democracy, where the legislature can either work out the item on the ballot with proponents and pass it through their chamber, or amend items that reach the ballot. In addition, we need a higher barrier for Constitutional amendments and changes to the process of signature gathering.
• any ballot-box budgeting must include a dedicated funding source – “paygo for initiatives”
• smaller legislative districts, either by expanding the Assembly or moving to a unicameral legislature with 150 or more members.
• elimination of the current term limits, the tighest in the nation, with more of a happy medium
• instant runoff voting for state legislative vacancies to speed the process of filling them
• local government gets the local resources they collect without them routing through Sacramento
Those are a few of the things I’d like to see addressed, and I’m sure people have additional ones. The crisis we currently have in California presents an opportunity for new thinking about government and how to manage the largest state in the union and one of the largest economies in the world. Despite the doom and gloom, California retains its vibrancy, its diversity, its abundance. Only the structure under with it governs itself has failed, and that failure has seeped into everyday life. Lifting that structure will be like lifting a heavy weight off the backs of the citizenry. We can lead a path to a better future.
Related – Repair California
I’m excited to read this.
Take a look at AB 4 (Blakeslee) and you’ll see what the other side is suggesting for delegate selection.
Two things that jumped right out at me were that they wanted equal numbers of Republicans and Democrats even though registration numbers in the state are no where close and that they wanted delegates to be ten year residents, which strikes me as something favoring financially secure folks.
I am very suspicious of the Bay Area Council and others representing corporate interests. My first choice would be for the legislature to sponsor a constitutional revision. When I blog about constitutional democracy on California blogs, I receive silence. The ability to elect a representative and then vote them out is essential. The best would be for enough Democrats to be elected to overcome the 2/3rd rule in the legislature. I realize the legislators would need to sponsor a proposition to make permanent changes. This may be slow, but a quick fix by multinational corporate CEO’s from Bay Area Council looks bad to me. The tampering of the state constitution by Howard Jarvis is an example of what we need to end. No one seems to realize we had a good law in the legislature to revise residential taxes. They may have been slow, but look what Prop. 13 did to CA.
When you start to think about this, it’s helpful to think first about the endgame.
Imagine, if you will, that we have called and held a constitutional convention, and that the delegates have arrived at a proposed revision with broad consensus and some spirited dissent from about twenty-five per cent of the delegates, split into four or five separate splinters.
Some provisions are opposed by the head-on-a-stick crowd. Others are opposed by a powerful union like the CCPOA and special interest business lobbies, say big oil and big alcohol.
What gives the electorate the confidence to approve the new constitution and minimizes the effectiveness of the opposition.
I posit that a Yes vote will hinge on whether the process is perceived as being fair and open, broadly representative and transparent, with extraordinary public access and interest in the process, very much divorced from the comedy in Sacramento.
Any organized group will have to run what is essentially a “You can’t believe your lying eyes” campaign that challenges what the voters, and the grasstop leaders among the voters, have seen for months of very public hearings, distributed around the state.
This is where there’s a tremendous advantage in the 400 member randomly selected assembly chosen under the New America proposal. A low turnout election gives you an opportunity for powerful interests to spend scads of money pushing particular candidates, whether it’s publicly financed or not. Appointments, or any involvement by the legislature at all will probably provide enough distrust to allow any organized opposition to kill a revision.
This doesn’t make the delegates non-partisan or anti-partisan. If the selection process is representative of the public, forty per cent of the delegates will be strongly partisan, but the balance of power will reside with what is essentially a town meeting of people who care enough about California to want to participate
I have a profound confidence in that group, especially if they start with a grounding in Democratic principles, have the resources to do their job, and the process includes bringing information and testimony from every area and constituency in the state.
Is it impossible to involve the state legislature in this constitutional reform? I still prefer to have people on the hook who can be elected and rejected?
I’ve been trying to think of ways to introduce the procedure to voters on a local or limited basis so they can get comfortable with it.
Your idea would do that, and it just makes a lot of sense in and of itself.
First, if we must have a State Senate, 1) increase the number of seats in the Assembly to 120 (the Senate would be expanded to 60), and 2) each Senate district should consist of two Assembly districts (for example, the Senator from the first district would represent Assembly districts 1 and 2, and so on). The Senate, as you indicated, would ideally be eliminated, though.
Second, eliminate the office of Lt. Governor as a separately elected office. It makes no sense to have a Republican governor and Democratic lt. governor, as we do now. Rather, the two should be elected on a ticket, and shall be of the same party.
And third, eliminate term limits for legislative offices, but keep them in place for executive offices, as they are under the U.S. Constitution.
I have plenty of items on my wish list for a constitutional convention, but we need to be realistic and not turn this into something that will fail, because failure would be worse than failing to implement every good idea for constitutional reform (of which there are many).
The goal should be able to say to the voters: we’re not changing things much, except for X, Y, and Z; the other changes are just cleanup. (Of course that’s what Proposition 16 in 1962 claimed, and that’s when we got the current 2/3rds budget rule: a “cleanup” of the 1933 language, but we’ll do better, won’t we?)
With this claim, it is important that the X, Y, and Z list be quite small. For example, I don’t think eliminating the bicameral legislature belongs on the list, even if it were a good idea. Modifying term limits is a good idea, but risks a backlash, and doesn’t belong on this XYZ list. I would rather see these left for future constitutional conventions.
I think one priority should be off-loading the excess baggage from the constitution. So take what is there, separate it into two parts: the basics, and the baggage, and then call the basics the constitution, and move the baggage into either legislation or a new category in between legislation and constitution. For me, this is worth making it one of XYZ.
Clearly getting rid of the 2/3 rule must be one of the X, Y, Z, but for it to pass, it probably needs to have some other provision that will assure people that the legislature will not abuse this power (I’m personally not worried about this, but I think the electorate is).
If the convention is not going to limit itself to easily explained changes, then IMO the list of things that should be done is much longer than the eight listed above. For example, ranked ballots is high on my list of reforms (not lousy IRV, but real Condorcet voting). However, I would give that up to make the convention a success, as we very much need a success. I would also like to see ballot proposition reform (I think there are good ways to reform propositions without gutting them), but again I wouldn’t want the electorate thinking we’re taking away their rights, and lose the 2/3rds rule elimination.