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