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

As David Atkins discusses today, the decision on Prop. 8 by the State Supreme Court basically elevates the people as a Fourth Branch of government that cannot be countermanded by the judicial branch, no matter what their whims decide.  The Court said, “the system may be broken – depending on your perspective – but that’s the system we have, and we’re powerless to do anything about it.”

Thoughts at this point turn to the need for a transformation of this Constitution, to restore the balance of representative democracy, with a judiciary enabled to determine Constitutionality, with a legislative branch given their mandate by the people to reflect the popular will, with an executive secure in his or her role. While I do not believe that “the people” should be endlessly demonized for the options they have been given by a flawed process, I do believe that the verdict has been delivered on this form of government, and delivered as a failure.  In an extraordinary discussion unrelated to the Prop. 8 case, the Governor today basically admits California is ungovernable even while vowing to follow the “will of the people,” a will which he fails to properly define.  Most of the rant Arnold made today involves him whining that he’s not allowed to be a dictator.  But some of it is brutally revealing.

Gov. Arnold Schwarzenegger considers himself a glass-half-full guy, and he ended his California Small Business Day speech in Sacramento with a dose of optimism. But it seemed clear the governor has just about had it with California’s governance system, especially after last week’s special election was a colossal failure. Though he blamed many of the state’s budget problems on the current economic collapse, he said part of our woes are “self-inflicted.”

“California hasn’t had a responsible fiscal system since Earl Warren in the late ’40s and early ’50s,” he said.

The governor ticked off a number of complaints about the system this morning:

• The state relies too much on personal-income and capital gains taxes.

• The state doesn’t have a spending cap, nor a “rainy-day fund” (the latter point is questionable given that Schwarzenegger asked voters to establish a “rainy-day” reserve in 2004, albeit one with weak restrictions).

• Federal judges tell California how to run its prison health-care system.

• Federal stimulus rules restrict how California can cut from its budget.

• California requires a two-thirds vote to approve the budget.

• An “endless list” of ballot-box budgeting requirements, including Propositions 13, 42, 49 and 1A, all of which he has championed in the past.

“Until we fix our system, nothing will ever change,” Schwarzenegger said. “This is no way, of course, to run a state.”

He’s crying about “federal judges” who merely enforce the Constitutional right of prisoners not to be allowed to die as a cause of their incarceration.  And the federal stimulus rules don’t restrict a damn thing, they merely require a certain threshold of service to qualify for federal funds.  Waah waah waah.  But the last two are truly amazing.  Schwarzenegger ADMITS the two-thirds rule has completely hamstrung government, and that “an endless list” of ballot-box budgeting have distorted the balance of power in California.  Prop. 49 is the after-school program initiative that SCHWARZENEGGER HIMSELF put on the ballot prior to his tenure in office.

Arnold’s press people tried to walk this back today, but this was a Kinsleyan gaffe where he made the mistake of telling the truth.  Schwarzenegger has always wanted to claim to know the will of the people, and he pretty much got it right when he let his guard down today – Californians want a functional government with a basic level of services funded equitably, and they want lawmakers to do the job they were elected to do.  “The people” are a Fourth Branch who want no part of being elected or serving.

The next batch of gubernatorial wannabes have a mixed record on Constitutional reform.  Some reports claim that they are more interested with the rhetoric of change than offering anything specific and incurring the wrath of the unelected Fourth Branch.    If in fact candidates run in this fashion, they will discover an electorate actually more interested in solutions than mantras, more interested in fundamental reform than careening along this unsustainable path.  And 19 months later, when one of them sits in the office in Sacramento and actually looks deeply at the situation in which they find themselves, they’ll have wished longingly for a whole raft of specific reforms they could implement right away.  Because otherwise, they will sink under the weight of a top-heavy, broken governmental system.