After a year of public discussion and behind-closed-doors drafting, the Bay Area Council has filed their two initiatives for the November 2010 ballot to allow Californians to call a Constitutional Convention.
The first and fairly noncontroversial initiative would change the existing constitution to allow voters to themselves call a convention. Currently only the legislature can do so.
The second initiative is the biggie, the one that actually convenes the convention and lays out how it operates, including how delegates would be picked and what the scope would be.
The delegate selection process would be as follows: 3 delegates randomly selected from each AD (total of 240) and delegates selected by county Boards of Supervisors, one delegate per every 175,000 in a given county, with cities of over 1 million (currently LA and SD, maybe San Jose) get to pick some of their county’s delegates. Federally-recognized Indian tribes get to send a total of 4 delegates (they decide themselves who the 4 will be). This is interesting, since tribes’ primary relationship with with the federal government, and states are very strictly limited from regulating tribal affairs or lands. Still, better to have them in the process than outside it, especially since they were banned from the 1849 and 1879 conventions.
Significantly, all delegates must be citizens. Permanent residents are not eligible to participate. There are a series of other restrictions designed to keep political insiders out of the convention – rules that exclude yours truly (since I serve on a party central committee), but those are much less problematic than the exclusion of California’s considerable non-citizen population.
Preliminary analysis offered to me by Gus Ayer over email, which I hope he’ll share in the comments, indicates that this structure would be highly likely to produce a delegate body that is right of center. California’s large-population counties tend to be in Southern California and have Boards of Supervisors dominated by Republicans.
The convention’s scope is also interesting, and skewed toward the right. Have a look at the language on “Government Effectiveness,” included as one of four items the Convention MUST consider (along with “Elections and Reduction of Special Interest Influence,” “Spending and Budgeting” and “Governance”):
Government Effectiveness, including a method for periodically reviewing each State agency, department, board and commission to determine whether it is performing its functions to meet the needs of the people of the State and whether it should have its enabling legislation modified, be merged into another new or existing entity, or cease to exist.
The convention it would also be barred from altering existing constitutional language regarding taxes (including but not limited to Prop 13) if there’s any chance that the alteration “changes the fundamental nature of” the tax or might cause the tax to rise. In his response to my question during last week’s live interview on Calitics, Gavin Newsom said Prop 13 should be part of a Con-Con.
The initiative also proposes to limit the scope of the convention in this way:
the convention may not include new language, or alter existing language, directly affecting marriage or abortion rights, gambling or casinos of any type, affirmative action, freedom of the press, freedom of religion, immigration rights, or the death penalty.
I don’t know if they simply forgot to include “freedom of speech” or the state’s Equal Rights Amendment or any number of other elements that make our state’s Bill of Rights far, far stronger than the federal bill of rights, or if they deliberately want that to be altered. (Businesses have never been very happy with the Pruneyard decision, which used the state’s freedom of speech constitutional language to extend many speech rights onto private property, specifically shopping centers.)
Needless to say, this is not how I would have written a Con-Con initiative.
UPDATE by Robert: Joe Mathews offers his take on the initiatives, noting that the FPPC will be in charge of the Convention, picking the staff and training the delegates. He also points out that the “clerk” of the convention will be an extremely important role, could be anybody, and can only be fired by a 2/3rds vote of the Convention.
A representative of the BAC was at SFWPC’s Women’s Policy Day in San Francisco on Monday. She made her statement pretty clear that “special interests” would not be included at the table. What she should have said was citizens who don’t align with the Bay Area Council’s ideology would not be included.
I guess she didn’t realize that the very nature of the BAC is conservative “special interest” This conservative proposal is not going to help repair California since it will not get rid of 2/3 or Prop 13. DOA.
As the Prop 8 legal challenges brought to light, voters are permitted to amend, but not revise the Constitution through the initiative process. While the law is pretty murky (especially after the Prop 8 challenge was denied) it seems pretty well established that anything that structurally changes the plan of government is a revision, not an amendment, and it cannot be enacted through the initiative process.
My question is whether the first initiative is a “revision” or an “amendment.” If passed, the first initiative would change the existing constitution to allow voters (rather than solely the legislature) to call a convention. This sure sounds like something that structurally changes the plan of government, doesn’t it? If so, it’s a revision and the voters do not have the power to enact it through the initiative process.
I assume the Bay Area Council has good lawyers who have researched this issue, and they must believe they have a good argument as to why the first initiative isn’t a “revision.”
Thoughts?
I have been a big proponent of the Con-Con idea, but this proposal is pathetic. I absolutely will not in any way try to convince anyone to vote for this. If Prop 13 isn’t on the table, then why bother?
It will be a cold day in hell before I vote to seat “randomly selected” delegates in a constitutional convention. The odds that such delegates would be individually competent in statecraft is low; therefore, the odds that they would be captured by various interests is high — and so are the odds that whatever they produced — if they produced anything — would be unacceptable.
The proposal is farcical.
I’ve been a huge proponent of a Constitutional Convention for a couple years now, but I’ll be telling my friends not to vote for this version. Shame.
is the bay area council’s proposal going to be the only one out there, or is there a possibility that someone else will put something structured differently up against it?
Remember Jean Ross telling us at NN09 that it could be worse, a lot worse? So now we’ll have a con-con that seems to consider Prop 13 more sacrosanct than freedom of speech?
so changing the absurd tax structure is out of bounds, but replacing state functions with “public-private partnerships” – which are the absolute Rage with Everyone these days – that’s OK. smiley face shock doctrine.
i also notice that the nice, average-joe sounding random selection immediately gets winnowed down to alphas and squeaky wheels by a secret ballot at the end of the initial two day meeting of the delegate pool. i suspect half the real estate in California will change hands during Convention meetings.
Let’s have real elections, with proportional representation. I favor 5-7 seats per AD, open to everyone but current state elected officials. Maybe elected under Clean Election rules to make it an even playing field. I for one don’t fear an open convention, with everything on the table. Let’s do this for real, people!
So can the covention deal with the other prop 13 funding issues? Like the 2/3 issue and the inability of localities to raise revenue? That the real problem, if that was fixed prop 13s tax issues would become non issues
This is just what I predicted. What drugs were all these liberal non-profit groups on when they signed on to this? Also “randomly selected” delegates from each AD? Insane. Prop 13 off the table and CA constitutional rights on the table? Who crafted this – just the BAC or did the liberals who were part of the debate also in on this?
The Bay Area Council, after raising initial hopes about a Constitutional Convention with a random selection of delegates, caved into conservative interests, and came up with a delegate selection process that makes sure that almost every delegate that comes out of Orange County will be a partisan wingnut Republican.
This became suspicious when their original open process went behind closed doors.
It didn’t take long to calculate how the delegate selection will play out in Orange County, which will have around 38 delegates, including 17 selected at the county level and around 21 selected by assembly district (districts cross county boundaries). Given our City Selection committee and board of supervisors, the 17 selected at the county level will be hard-right Republican political operatives. Of the other 21, the random selection, with self-selection that skews old, white and Republican, followed by a majority vote, will give us probably another 18 Republicans, and perhaps three Democrats from Solorio’s district, but even that is a crap shoot.
Disenfranchised will be almost all of the voters. The roughly 37% of the electorate that is the Republican base will supply over 90% of the delegates, and the delegates will be far to the right of the electorate.
So much for the progressive ideas or any chance that we would include enough moderates through a random selection process that some common sense might emerge.
FAIL
the more i am convinced that the best strategy right now is to get lakoff’s majority rule initiative passed, and ditch the con-con until we have that 2/3 majority in the state leg and can name the terms ourselves.