BILL ANALYSIS                                                                                                                                                                                                    Ó



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          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 








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          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 








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            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 








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               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."









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          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 








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          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.









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          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 








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          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 








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             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 








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          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 










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