BILL ANALYSIS Ó ACR 95 Page 1 Date of Hearing: April 24, 2012 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair ACR 95 (Huber) - As Introduced: January 30, 2012 SUBJECT : CONVENTION TO REVISE THE CALIFORNIA CONSTITUTION KEY ISSUES : 1)SHOULD THE LEGISLATURE SUBMIT TO THE VOTERS THE QUESTION OF WHETHER TO HOLD A CONSTITUTIONAL CONVENTION IN ORDER TO REVISE OR EVEN REINVENT THE CALIFORNIA CONSTITUTION? 2)MIGHT CONSTITUTIONAL REVISION THROUGH A NEW CONVENTION PROCESS POTENTIALLY ALLOW, AS THE AUTHOR ASSERTS, THE STATE'S CONVENTION DELEGATES TO SUBSTANTIALLY IMPROVE STATE GOVERNANCE? 3)TO WHAT EXTENT, IF ANY, MIGHT, AS THE BILL'S OPPONENTS CONTEND, A NEW CONSTITUTIONAL CONVENTION DURING THESE ESPECIALLY TRYING POLITICAL TIMES INADVERTENTLY RISK PRODUCING A NEW CONSTITUTION THAT UNDULY REFLECTS THE TEMPORAL CONCERNS OF THE DAY, AND MAY EVEN ELIMINATE ONE OR MORE BEDROCK CORE PRINCIPLES THAT FORM THE ESSENTIAL FABRIC OF OUR DEMOCRACY? FISCAL EFFECT : As currently in print this measure is keyed fiscal. SYNOPSIS This measure seeks to submit the question of whether to hold a convention for the purposes of revising the California Constitution to the voters at the next general election. The author writes that the state's constitution "resembles more a collection of statutes than a core governing document" and needs to be amended. However, several legal scholars including Erwin Chemerinsky, nationally respected dean of the UC Irvine School of Law, express deep concern that the product of any such constitutional convention, even one focused on narrow reforms, will never receive majority support from Californians. These scholars argue that "hot button" issues, including marriage equality, tax reform, term limits and basic governmental structures would potentially sidetrack even the best intentioned ACR 95 Page 2 convention as voters will focus on these currently controversial issues and not the underlying reforms and constrictions that the author and others calling for such conventions may seek. They worry that given the fractious nature of California's electorate, holding a constitutional convention in California's currently heated political climate risks inadvertently producing a document that might even eliminate core potentially non-majoritarian principles of liberty and that might still end up with a document as equally unwieldy as the state's existing constitution. In response, the author states that the state constitution is "replete with funding mandates and provisions that may have been important at one time, but are now out of date, may no longer be needed and in many cases severely restrict the ability of the Legislature to govern." CalTax writes in opposition that "In a hyper-politicized culture, constitutional conventions fail to unite a society. Once third-rail issues (immigration, education, marriage, taxes, etc.) enter a conversation, the political feasibility of positive reform falls flat and minority voices are marginalized." SUMMARY : Seeks to put to the voters at the next general election the issue of whether to hold a convention to revise the California Constitution. Specifically, this measure : 1)Resolves that the legislature, with two-thirds of the membership of each house concurring, submit to the voters at the next general election the question of whether to hold a convention to revise the California Constitution. 2)Directs the Secretary of State to submit the question of whether to hold a convention to revise the constitution to the voters in the same manner as any other measure submitted for voter approval at a statewide general election. 3)Provides, pursuant to the requirements of Article XVIII, Section 2 of the California Constitution, that if a majority of the electorate votes in favor of holding a constitutional convention, within 6 months the legislature shall provide for the holding of a convention. 4)Requires that, if the electorate approves a constitutional ACR 95 Page 3 convention, the legislature shall prescribe by statute the rules of procedure governing the election of delegates to the convention and the conduct of the convention. EXISTING LAW : 1)Permits the Legislature, by a vote of 2/3 of the members of each house, to propose an amendment or revision of the Constitution. Specifies that each amendment shall be so prepared and submitted that it can be voted on separately. (California Constitution, Article 18, Section 1.) 2)Permits the Legislature, by a vote of 2/3 of all members of each house, to submit at a general election the question of whether to call a convention to revise the Constitution. If the majority votes yes on that question, then the Legislature must within six months provide for a convention. Requires that delegates to a constitutional convention be voters elected from districts as nearly equal in population as may be practicable. (California Constitution Article 18, Section 2.) 3)Provides that the electors may amend Ýbut not revise] the Constitution by initiative. (California Constitution, Article 18, Section 3.) 4)Provides that any proposed constitutional revision, whether submitted by the Legislature or by a constitutional convention, "must be submitted to the voters, and becomes effective if approved by a majority of votes cast thereon at the election." ( Strauss v. Horton (2009) 46 Cal.4th 364, 414; California Constitution Article 18, Section 4.) COMMENTS : This measure would submit to the voters the question of whether to hold a convention to revise the California Constitution. In support of this measure, the author writes: The California Constitution is the third longest constitution in the world. At 110 pages, it is eight times longer than the U.S. Constitution. Since 1879, the California Constitution has been amended over 500 times. The result is a constitution that is inflexible and more resembles a collection of statutes than a core governing document?ÝIt] is replete with funding mandates and provisions that may have been important at one time, but ACR 95 Page 4 are now out of date, may no longer be needed and in many cases severely restrict the ability of the Legislature to govern? In order to 'clean-up' our constitution, the Legislature would have to pass hundreds of bills, and each would require confirmation by voters via referendum? A Constitutional convention would allow the entire constitution to be examined as a whole and streamlined to better fit our state's priorities, rather than dealing with individual issues on a piecemeal basis. The author's criticism of the constitution's present condition echoes broad concerns that have persisted for decades by governance experts. For example, in 1959, a legislative committee on constitutional amendments noted that, at the time, the consensus among experts was "that the California Constitution was in need of fundamental revision . . . . Ýand] 'should be reorganized, overhauled, condensed and simplified.'" (Report of the Assembly Interim Committee on Constitutional Amendments (Nov. 15, 1960).) More recently, in the late 1990s, one of the more recent constitution revision commissions (see history below) concluded that "the state's governmental system developed in the nineteenth century will not be adequate for the twenty-first century," and proceeded to make a number of specific recommended changes to the state constitution. (California Constitution Revision Commission, Final Report and Recommendations to the Governor and the Legislature (1996)). "A Trip Down Memory Lane": The State's First Constitutional Convention : California's First Constitutional Convention was held in 1849 at Colton Hall in Monterey. At that time, the Military Governor of California, General Bennett Riley, called an election for August 1st to elect 37 delegates to attend the convention. During the first meeting of the Convention, it was decided to increase the number of delegates in order to make the body more proportional for the recent flood of miners who had been arriving in the Sacramento Valley's Gold Country. A major debate at the convention was whether it was appropriate for the Constitutional Convention to prohibit slavery, or whether that was a decision that would be better left to the first legislature. In the end, the Convention voted to settle the matter immediately, with Section 18 of Article I of the state constitution reading "Neither slavery, nor involuntary servitude, unless for the punishment of crimes, shall ever be tolerated in this State." ACR 95 Page 5 The 1849 constitution guaranteed the right to vote to "every white male citizen of the United States, and every white male citizen of Mexico, who shall have elected to become a citizen of the United States" and who was at least twenty-one years old. It also set San Jose as the first state capitol ÝArticle XI, Section 1], and required Assemblymembers to be elected annually (State Senators were elected every two years). The constitution established both English and Spanish as the official languages for the state, and allowed dueling to be punished by the loss of the right to vote and to hold public office. The constitution also prohibited the legislature from allowing divorce or the establishment of a state lottery. (http://www.joincalifornia.com/) The History of Earlier Efforts to Revise the State's Constitution Via A New Constitutional Convention: As noted above, there are two permissible methods for proposing revision to the California Constitution: "A revision . . . may be proposed either by the required vote of the Legislature or by a constitutional convention (proposed by the legislature and approved by the voters). . . . ÝA] proposed revision of the Constitution must be submitted to the voters, and becomes effective if approved by a majority of votes cast thereon at the election." ( Strauss , supra.) California's second - and last -- constitutional convention took place almost 150 years ago in 1878-79. Since that time, a number of efforts have been mounted to hold another convention but all have been unsuccessful. Although the voters approved the holding of a convention in 1934, "the legislature then failed to fund and convene it. Since that time, reform advocates have not secured the necessary two-thirds majority in each house to put a convention call before the voters." (Thad Kousser, The Blessings and Curses of Piecemeal Reform , 44 Loy. L.A. L. Rev. 569, 576 (2011).) The Alternative Process for "Cleaning Up" and Improving the Constitution - The Constitution Revision Commission Process : Following the earlier failed efforts to create a new constitution convention, fifty years ago, in 1963, the Legislature pursued the other mechanism set forth for revising the state's constitution when it passed ACR 7 and ACR 77 to create what is now referred to as our first Constitution Revision Commission (CRC) to implement Proposition 7. The CRC recommended at that time a series of discreet constitutional revisions for the Legislature's consideration in 1966 and 1968, some of which were successful. Some highlights of the 1966 ACR 95 Page 6 revisions that were subsequently approved by the voters include Proposition 1-A, which created a full-time legislature. In addition, the signature gathering requirements for statutory initiatives were lowered to encourage pursuit of statutory rather than constitutional amendments at the ballot box. The successful 1966 revisions also reduced the length of the constitution at that time by deleting many specific, policy-related provisions and re-writing them as statutes in the various codes. As with the author's stated goal with ACR 95, the changes secured by the alternative constitution revision commission process back in the 1960s were intended to reduce the length of the constitution, and to ensure that the constitution served its intended purpose of providing a set of basic principles and a general framework for California government. The State's Second Constitution Revision Commission Two Decades Ago : In 1993, after the deep fiscal crisis that forced the state to issue IOUs, the California Legislature created a second Constitution Revision Commission (Act of October 11, 1993, Ch. 1243, 1(b)). The 1993 Constitution Revision Commission made recommendations on the state budget process, basic state governance, the legislative process and the ways in which the constitution may be revised or amended. With the exception of several statutes dealing with multiyear capital outlays, however, most of the 1993 recommended reforms were never enacted. Most Recent Attempt to Call for a Constitution Convention to Revise the State Constitution : Most recently, just a few years ago in 2009 the reform group Repair California spearheaded a serious effort to try to use the initiative process as a springboard for initiating a constitutional convention. The group's two-pronged strategy was to 1) pass one "initiative modifying Article XVIII, section 2 of the constitution to permit the people to place on the ballot the question of whether to call a convention without a two-thirds vote of the legislature," and 2) present a separate initiative "asking that question itself - the call for a constitutional convention." (Steven Miller, Getting to a Citizens' Constitutional Convention: Legal Questions (Without Answers) Concerning the People's Ability to Reform California's Government through a Constitutional Convention, 44 Loy. L.A. L. Rev. 545, 549 (2011).) Although this campaign gained some initial traction, it failed to garner sufficient support and did not succeed. ACR 95 Page 7 The Potential Advantages of Pursuing Comprehensive Revision of the Constitution Through the Creation of A New Convention : As noted above, the California Constitution may be changed in one of two ways: through amendment or revision. A constitutional revision is defined as a measure that would "substantially alter the basic governmental framework," and is not constrained to the "single-subject" or "reasonably-related common purpose or theme" requirement imposed on constitutional amendments. ( Legislature v. Eu , 54 Cal.3d 492, 510-513 (1991).) Although the California Supreme Court has upheld the constitutionality of amendments that have substantially altered portions of the governmental framework, e.g., Proposition 140, which imposed term limits on the legislature and nearly cut the legislative budget in half, the differences between revisions and amendments are still significant because revisions may take a comprehensive approach to changing the constitution. Historically, the California Constitution has been very easy to "amend," but very difficult to "revise." As a result of this fact, amendments are enacted frequently but with little consideration for their effect in relation to other amendments or existing constitutional provisions. Some observers claim that the result is a governmental framework that is inherently unworkable: "instead of being considered together, these resolutions are adopted one by one, resulting in a patchwork document with a self-negating message: government must do more, and it must have less power and less money with which to do it." (Karl Manheim, John S. Caragozian & Donald Warner, Rebooting California-Initiatives, Conventions and Government Reform , 44 Loy. L.A. L. Rev. 393, 409 (2011).) Constitutional revision through the convention process would thus potentially allow, as the author notes, the state's convention delegates to "holistically" assess the effects of proposed changes in a manner that facilitates systematic reform. Voters, in considering whether to approve the proposed revision, would also be required - by having to vote for the proposed new constitution en toto, to make holistic assessments by considering how specific provisions work together in an integrated whole. As noted above, this type of public deliberation does not typically take place when the voters consider isolated, single-subject amendments in the initiative process. Likely Majority Support by Current Voters for a Convention Process : Numerous books, scholarly articles, journals, and ACR 95 Page 8 newspaper articles have called for fundamental reforms to our system of governance. (See, e.g., Bruce Cain & Roger Noll, Constitutional Reform in California (1995); Ken Debow & John Syer, Power and Politics in California (2009).) Public opinion polls also appear to reflect how presently frustrated Californians are with the system of governance in the state. According to a PPIC poll taken in 2009, for example, almost 2/3 of Californians thought the constitution needed to be changed. (See PPIC Statewide Survey, Aug. 26-Sept. 2, 2009.) It Is Unclear to What Extent Temporal "Hot Button" Issues of the Day, As Opposed to Desired Governmental Reforms, Might Dominate Any New Constitutional Convention: In considering the potential merits and risks of laying the groundwork for a new constitutional convention, it is important to acknowledge that even those who support the theory of cleaning up the state's muddled constitution have expressed serious reservations regarding the potential for such a process to practically secure its desired objective of producing large-scale systematic governance reform. Internationally recognized constitutional scholar Erwin Chemerinsky, for example, who is dean of the UC Irvine School of Law, noted in a May 28, 2009, Los Angeles Times editorial: Even if there is a constitutional convention, and even if it does come up with a coherent and meaningful package of proposed changes, it's uncertain that that package would ever be adopted. There are countless controversial issues that could doom it. For example, if the revised constitution protects a right to marriage equality for gays and lesbians, a significant number of voters will oppose it on that basis alone. But if the new constitution does not protect a right to marriage equality, others will vote against it for that reason. The same impasse could arise over abortion rights, affirmative action or benefits for undocumented immigrants. Even if the constitutional convention were narrowly limited to issues related to the state's fiscal problems, this difficulty would not go away. For example, Proposition 13, which limits property taxes, has a greatly distorting effect on the state's tax structure, and I would certainly argue that it should be repealed or, at least, reformed. But simple politics tells us that a ACR 95 Page 9 proposal to repeal Proposition 13 would be enormously controversial and could doom any constitutional reform. In order to appease the wide-array of special interest groups who would want to influence the document, compromise provisions would dominate any new constitution. These compromises, rather than produce good law, would instead produce a document even more convoluted and difficult than California's existing constitution. Furthermore, once the new document came before a vote of the entire electorate, hundreds of millions of dollars of special interest money would be spend advocating for the documents passage or defeat. The information overload would likely overwhelm the electorate and leave citizens confused as to what they were actually voting for. Might, As Opponents Assert, A New Constitutional Convention Inadvertently Endanger Cherished Core Values and Traditional Liberties? : Although appropriately highlighted by Dean Chemerinsky, topics like marriage equality and abortion might not be the only issues to potentially divide a consuitutional convention and the electorate as a whole during these especially heated political times. According to the First Amendment Center, only 62% of the electorate currently believe that the First Amendment protects basic speech rights. Additionally, only 28% percent of those surveyed believe that our constitution guarantees a separation of church and state, and an even more frighteningly low six percent of the electorate reportedly believe that our constitution guarantees citizens the right to petition their government about grievances. Furthermore, the survey found almost one in five members of the electorate actually believe that the First Amendment "went too far" with the freedoms it granted. Given the apparent broad unawareness of the genesis and scope and purpose of some of our most bedrock constitutional provisions that form the essential fabric of our democratic form of government, and the reported hostility toward these rights felt by a substantial segment of the population during these volatile political times, opponents of calls for a new constitutional convention such as CalTax, as noted below, caution that a constitutional convention could inadvertently produce unintended restlts. They also assert that it may not be the optimal means for addressing concerns about specific ACR 95 Page 10 provisions in the state's constitution, and, ironically, rather than serving to help unite Californians may have the opposite effect. They note that once a new constitutional convention would be established, there would be no effective means of ensuring that it would focus on, and be limited to, any specific issues, and that all issues that make up our democratic form of government would be on the proverbial table. ARGUMENTS IN OPPOSITION : In opposing this bill, Cal Tax writes: In a hyper-politicized culture, constitutional conventions fail to unite a society. Once third-rail issues (immigration, education, marriage, taxes, etc.) enter a conversation, the political feasibility of positive reform falls flat and minority voices are marginalized." Furthermore, CalTax points out that California's lone successful constitutional convention, in 1879, produced a document that included provisions inserted to favor special interest and discriminated against minority communities, most notably Chinese migrant workers. Finally, CalTax cites a Stanford University study that found that " of the 15 American states that have held constitutional conventions over the past 45 years, few have been successful because the scope of the convention - be it a "limited" or "unlimited" call for a convention - was too broad and voters were reluctant to empower conventions to pursue bold reforms. As a result, voters responded by rejecting every call for a constitutional convention that has appeared on a state ballot since 1990. REGISTERED SUPPORT / OPPOSITION : Support None on file Opposition CalTax Analysis Prepared by : Drew Liebert and Josh Fox / JUD. / (916) 319-2334 ACR 95 Page 11