Get Me Rewrite!

By Robert M. Stern and Molly Milligan

This winter state legislators managed to avert a government shutdown by cutting a deal with the governor that depended on the passage of several ballot initiatives to offset a gaping budget deficit. But in May the voters rejected those measures by a wide margin. From a financial standpoint, that pushed the state right to the edge of the cliff.

One reaction to the crisis is growing support for the idea of holding a convention to rewrite the state's constitution. In fact, back in February the Bay Area Council gathered more than 300 people in Sacramento to chart a course that may lead to a formal convention.

There are, of course, good reasons why Californians should proceed with caution. For starters, a constitutional convention could easily degenerate into a political three-ring circus, yielding proposals that are shortsighted, discriminatory, or plagued with unintended consequences. Moreover, the delegates may well end up being overwhelmed by the same special interests that for decades have tied the Legislature in knots.

Still, given the depth of the state's problems right now, we believe that the benefits of the public debate that a constitutional convention would engender far outweigh the pitfalls?particularly if the process is carefully managed.

History can provide us with some guidance. The last time California convened a constitutional convention was in 1879, just 30 years after the original state constitution was approved and ratified. The big issues then were explosive population growth, rapid economic development, a national depression, and the influx of tens of thousands of Chinese immigrants.

Much of this was related to the impact of the Gold Rush. In fact, between 1848 and 1850 the population of San Francisco grew from 812 to roughly 100,000. And between 1849 and 1879, the state's population increased from 50,000 to 865,000, which, of course, put a severe strain on state and local governments.

There were 152 elected delegates at the 1879 convention. They ranged in age from 21 to 73. All were white, and all but two had been born outside California. (By contrast, 30 years earlier at the pre-admission Constitutional Convention, 7 of the 48 delegates were Hispanics who had lived in California all their lives.) Among the proposals considered and rejected at the 1879 convention was a resolution for a unicameral legislature; among those approved were limits on the rights of Chinese to citizenship, employment, and residency.

The convention met for 127 days, deliberating as 30 separate standing committees, and created a document that consisted of 22 articles. Then, after a spirited campaign that saw "constitution" and "anti-constitution" clubs spring up all over the state, the pro-ratification forces prevailed by a popular vote of 77,959 to 67,134?a margin of more than 7 percent.

Historians generally agree that the 1879 Constitution left much to be desired. As Pepperdine University professor Gordon Lloyd observes, "the 1879 Constitution is an excellent example of what a constitution should not look like. [It] constitutionalized the politics of class and race and was less inclusive and liberal than the first."

Thus, it is no surprise that in the years since it was ratified our constitution has been amended more than 500 times. There have also been periodic calls for revision: On four occasions?in 1898, 1914, 1928, and 1930?the Legislature proposed to convene a constitutional convention, only to be turned down by the voters. Then, in 1933, the Legislature failed to convene a constitutional convention after the electorate finally approved the idea.

Are we likely to do any better this time around?

Proponents of a convention point out that California's education, transportation, and water-delivery systems?once the envy of the rest of the country?now receive some of the lowest rankings among the 50 states. They also argue that California faces intense economic competition from every direction, and that the state's consistently late budgets and multibillion-dollar deficits threaten to drive out more and more businesses.

A constitutional convention would allow the electorate to engage in a discussion of potential solutions, and provide a truly meaningful opportunity to enact fundamental reforms. Here are just a few ideas.

- Lower the two-thirds minimum vote required in the Legislature to enact a budget or to raise revenue.

- Reform the ballot-initiative process.

- Restructure city, county, and other political subdivisions.

- Lengthen legislative term limits.

- Replace the Senate and Assembly with a unicameral legislature.

- Create a two-year budget cycle.

- Enact mandatory sunset provisions for all government agencies and programs.

- Reduce the number of elected statewide officials.

- Return to a part-time legislature.

These possible solutions should be considered by the people as part of a complete review, so that the reform of California government does not continue in the piecemeal fashion that has brought the state to its knees.

Before any convention can actually be held, though, Californians must arrive at a process for selecting the delegates. Will they be elected? Will legislators choose them? Will residents be able to volunteer? Will the selection be random, similar to a jury system? Or, will a combination of different methods be used? And how many delegates total should there be? Certainly more than the 152 that convened back in 1879, but not so many as to make the process unwieldy.

Citizens must be assured at every stage that the process of constitutional revision is transparent and accessible. This is critical if the work of a convention is to be presented to voters as legitimate.

Many other states periodically review their constitutions, and their experiences can guide us. Florida convenes a revision commission every two decades to make recommendations, which are often placed on the statewide ballot. In 1998 voters there approved eight of nine commission-proposed amendments. Another good example is Hawaii. At its last constitutional convention, in 1978, delegates proposed several important amendments that the electorate embraced, including term limits, partial public financing of election campaigns, and the creation of the Office of Hawaiian Affairs. (Incidentally, Hawaii doesn't have a citizen initiative process, so aside from a constitutional convention the only way that state can make constitutional revisions is by voter approval of a measure passed by the legislature.)

We believe that these conventions clearly fostered a very positive public discussion of possible reforms. We also believe that California would benefit from holding periodic constitutional conventions, say every 10 or 20 years. This would remove some of the anxiety associated with the idea of change, because the possibility of change would be a political reality.

The one scenario that seems highly unlikely, however, is the possibility that legislators themselves will call for a constitutional convention. The reality is, such a convention could open the door to substantive changes that might very well reduce the Legislature's power.

But it is not necessary to wait for the Legislature to convene a convention. Instead, the electorate can use its untapped power under our initiative process not only to authorize a convention but also to specify its scope and membership.

To be sure, change is never easy. But given California's current disastrous course, it's more important than ever to attempt a fresh start. And the best way to do that is to create a 21st-century constitution that dramatically changes the way California governs itself.

Robert M. Stern is president and general counsel of the Center for Governmental Studies in Los Angeles. He was a principal coauthor of the 1974 California Political Reform Act. Molly Milligan is an attorney and senior fellow for the center's Governance Project.

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