BILL ANALYSIS                                                                                                                                                                                                    



                                                                     AJR 30


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          Date of Hearing:  April 26, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AJR 30  
          (Grove) - As Amended April 21, 2016


          SUBJECT:  Federal constitutional convention:  application


          KEY ISSUE:  Should california call upon congress to convene a  
          constitutional convention for the purpose of amending the U.S.  
          constitution to impose restraints on the power and jurisdiction  
          of the federal government? 


                                      SYNOPSIS


          Article V of the United States Constitution provides two ways to  
          amend the Constitution: first, Congress may propose amendments  
          and submit them to the states for ratification; second, Congress  
          may, upon application by two-thirds of the states, call a  
          convention for proposing amendments to the Constitution.  Once  
          amendments are proposed, either by Congress or by a convention  
          requested by the states, any amendments become operative after  
          being ratified by three-quarters of the state legislatures, or  
          by conventions in the states. Of the twenty-seven amendments to  
          the Constitution, all have been proposed by Congress.  All but  
          one of the twenty-seven amendments proposed by Congress was  
          ratified by state legislatures; only the 21st Amendment  
          (repealing the 18th) was ratified by state conventions rather  
          that state legislatures.  This resolution would constitute  








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          California's application to Congress for a constitutional  
          convention.  Because this method has never been used, and  
          because Article V is light on detail, it is unclear how the  
          process envisioned by this resolution would unfold.  Do the  
          applications by states need to be identical, or at least on the  
          same subject matter?  If the applications by the states all  
          address the same subject, would Congress have the power (or even  
          the duty) to limit the scope of the convention to that subject?   
          Does there even need to be a single subject matter? How would  
          delegates to the convention be selected, by Congress or by the  
          states?  Would each state have an equal number of delegates, or  
          would the number of delegates be based on a state's population?   
          Given the multitude of questions, some scholars warn of the  
          dangers of an unlimited, "runaway convention" that could  
          radically alter the Constitution.  Other scholars argue that  
          Congress could, and likely would, limit the convention to a  
          single subject.  Still others reasonably conclude that if the  
          respected scholars who have studied the question disagree so  
          completely, then the only logical conclusion is that it is  
          impossible to know exactly what would happen.  Some argue that  
          the final check on a "runaway convention," even if that were to  
          occur, is the requirement for the final product to be ratified  
          by three-quarters of the states.  This assumes, however, that  
          the convention will not amend the Article V amendment process,  
          just as the original Framers ignored the provision of the  
          Articles of Confederation saying that the document could only be  
          amended by unanimous consent of all thirteen states before  
          jettisoning the Articles entirely.  As to AJR 30, however, the  
          question of whether the convention can be limited may not matter  
          because AJR 30 is "limited" to the breathtakingly broad topic of  
          the "power and jurisdiction of the federal government."  Given  
          that the Constitution is, in essence, a limited grant of power  
          and jurisdiction to the federal government, the resolution's  
          "limitation" would seem to be unlimited. 


          SUMMARY:  Constitutes an application to the United States  
          Congress to call a constitutional convention pursuant to Article  
          V for the purpose of amending the United States Constitution.   








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          Specifically, this measure:  


          1)Declares that Whereas:


             a)   The Founders of the United States Constitution empowered  
               state legislators to be guardians of liberty against  
               excessive use of power by the federal government.


             b)   The federal government has created a mounting national  
               debt exceeding $17 trillion through improper and imprudent  
               spending.


             c)   The federal government has usurped the legitimate roles  
               of the states through unfunded federal mandates.


             d)   The federal government has ceased to operate under a  
               proper interpretation of the Tenth Amendment of the United  
               States Constitution.


             e)   It is the solemn duty of the states to protect the  
               liberty of our people by proposing amendments to the United  
               States Constitution through a convention of the states. 


          2)Resolves that:


             a)   The Legislature of the State of California hereby make  
               application to the Congress of the United States to call an  
               amendment convention pursuant to Article V of the United  
               States Constitution limited to proposing amendments to the  
               United States Constitution that impose fiscal restraints on  
               the federal government and that limit the power and  








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               jurisdiction of the federal government.


             b)   The State of California joins in the application of the  
               states of Georgia, Florida, Alaska, Alabama, Tennessee, and  
               Indiana in calling for a convention to propose amendments  
               that impose fiscal constraints on the federal government,  
               and which limit the power and jurisdiction of the federal  
               government.  Expresses Legislature intent that this  
               application shall be joined with those states and  
               subsequent applications by other states limited to the  
               identified purposes. 


             c)   The Legislature adopts this application with the  
               understanding that Article V confers no power on the  
               Congress other than the ministerial duty to "call" a  
               convention; that Congress has no power to name delegates to  
               convention, but that this power shall remain exclusively  
               with the states; and that Congress shall be otherwise  
               limited in its powers to providing for the manner in which  
               the convention is conducted, as specified.  Contends that  
               because Article V only gives Congress the power to "call" a  
               convention it may only act as expressly specified in  
               Article V. 


          EXISTING LAW requires Congress, whenever two thirds of both  
          houses shall deem it necessary, to propose amendments to the  
          United States Constitution, or, upon the application of the  
          legislatures of two thirds of the states, to call a convention  
          for the purpose of proposing amendments, which shall be valid  
          when ratified by the legislatures of three fourths of the  
          states, or by conventions in three fourths thereof, as the one  
          or the other mode of ratification that may be proposed by the  
          Congress.  (Article V of the U.S. Constitution.)


          FISCAL EFFECT:  As currently in print this resolution is keyed  








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          non-fiscal. 


          COMMENTS:  Article V of the United States Constitution provides  
          two ways to amend the Constitution: first, Congress may propose  
          amendments and submit them to the states for ratification;  
          second, Congress may, upon application by two-thirds of the  
          states, call a convention for proposing amendments to the  
          Constitution.  Once amendments are proposed, either by Congress  
          or by a convention requested by the states, they become  
          operative after being ratified by three-quarters of the state  
          legislatures, or by convention in three-quarters of the states.  
          This resolution would, pursuant to Article V of the United  
          States Constitution, constitute California's application to the  
          U.S. Congress to call a convention for purposes of amending the  
          U.S. Constitution. 


          According to the author, and the declarations in this  
          resolution, the Constitution must be amended in order to restore  
          the Framers' original purpose of empowering state legislatures  
          as a bulwark against "the excessive use of power by the federal  
          government."  AJR 30 declares that the federal government has  
          "usurped the legitimate roles of the states" and "ceased to  
          operate under a proper interpretation of the tenth Amendment to  
          the United States Constitution."  As such, this Article V  
          application represents "the solemn duty of the states to protect  
          the liberty of our people [by] proposing Amendments to the  
          United States Constitution" that will "impose fiscal constraints  
          on the federal government and limit the power and jurisdiction  
          of the federal government."  Although the resolution links its  
          applications to those recently adopted by Alaska, Alabama,  
          Florida, Georgia, Indiana, and Tennessee, those resolutions are  
          similar but not identical to this resolution.  Most notably,  
          those resolutions also call for limiting the terms of federal  
          officeholders.


          AJR 30 and the Original Meaning(s) of the Constitution.  AJR 30  








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          purports to know the original intent of the Framers and the  
          original meaning of Constitutional provisions, including the  
          10th Amendment.  It may be useful, therefore, to recall the  
          history of the Constitutional Convention.  The resolution's  
          claim that the Framers of the United States Constitution wanted  
          to "empower" state legislatures seems at odds with the  
          conclusions drawn by most historians.  The consensus among  
          historians is that the delegates who met in Philadelphia agreed  
          that the national government under the Articles of Confederation  
          was too weak and ineffectual, and the purpose of the convention  
          was to strengthen, not weaken, the federal government.  Although  
          James Madison and Alexander Hamilton would later differ on  
          questions of federal power, they agreed on this point.  In  
          particular, Madison's Federalist #10 - probably the best known  
          of the Federalist Papers - argues for a larger, stronger federal  
          government that could restrain popular majorities in the state  
          legislatures, who in Madison's mind had shown a foolish "rage  
          for paper money, for an abolition of debts, for an equal  
          division of property, or for any other improper or wicked  
          project."  (Gary Wills, Ed., The Federalist Papers, Bantam  
          Classic Edition, 1982, p. 49.)  During the convention, Madison  
          even proposed giving Congress the power to veto acts of the  
          state legislatures.  For Madison, at least, empowering state  
          legislatures was not at the top of the agenda.  


          That Madison's plans for a Congressional veto over the states  
          was rejected suggests that the "Framers" were not all of one  
          mind and any attempt to discern a single "original meaning" or  
          "original intent" of the Framers is fraught with difficulty.   
          (See e.g. Jack Rakove, Original Meanings: Politics and Ideas in  
          the Making of the Constitution (1996).)  Not only is it  
          difficult to discern a single meaning or intent of a collective  
          body, Madison's political career shows that it is often  
          difficult to discern a single intent of even a single person  
          within that body.  A little over a decade after arguing that  
          Congress should have veto power over the acts of state  
          legislatures, Madison secretly drafted the Virginia Resolutions  
          of 1799 which declared exactly the opposite: that a state could  








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          nullify an Act of Congress.  Nearly twenty years later, in 1816,  
          Madison did another about-face, supporting the Second Bank of  
          the United States, after arguing throughout the 1790s that  
          Congress had no constitutional power to establish the First Bank  
          of the United States.  (James Ketcham, James Madison: A  
          Biography, 1982.)  Those who purport to understand the "original  
          intent" of the Framers must have a difficult time with Madison,  
          arguably the most influential of the Framers.  Is it the Madison  
          of 1787 who wanted to give Congress the power to veto acts of  
          the states, or the Madison of 1799 who wanted to give states the  
          power to nullify an Act of Congress?  Is it the Madison of the  
          1790s who vigorously argued that the federal government lacked  
          power to create a national bank, or the Madison of 1816 who  
          supported and signed the legislation reestablishing a national  
          bank? 


          The Meaning of Article V.  Just as it is difficult to discern  
          the meaning or intent of the U.S. Constitution, it is no easier  
          to discern the meaning of specific provisions of the  
          Constitution.  Nowhere is this more evident than in the single  
          paragraph that constitutes Article V.  It warrants quoting in  
          full: 


             The Congress, whenever two thirds of both Houses shall  
             deem it necessary, shall propose Amendments to this  
             Constitution, or, on the Application of the Legislatures  
             of two thirds of the several States, shall call a  
             Convention for proposing Amendments, which, in either  
             Case, shall be valid to all Intents and Purposes, as Part  
             of this Constitution, when ratified by the Legislatures of  
             three fourths of the several States, or by Conventions in  
             three fourths thereof, as the one or the other Mode of  
             Ratification may be proposed by the Congress; Provided  
             that no Amendment which may be made prior to the Year One  
             thousand eight hundred and eight shall in any Manner  
             affect the first and fourth Clauses in the Ninth Section  
             of the first Article; and that no State, without its  








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             Consent, shall be deprived of its equal Suffrage in the  
             Senate.


          In all, Article V creates four ways to amend the Constitution,  
          two methods of proposing amendments coupled with two methods of  
          ratifying amendments.  The two methods of ratification are  
          relatively straight-forward.  Once amendments are proposed, they  
          must be ratified by three-quarters of the state legislatures or  
          by a convention in those states.  Congress, not the states,  
          decides which method is used. Twenty-Six of the twenty-seven  
          constitutional amendments have been ratified by state  
          legislatures.  Only the 21st Amendment (repealing prohibition,  
          the 18th Amendment) was ratified by conventions in the several  
          states.  When it comes to proposing amendments, more questions  
          arise.  For example, given the rule of construction which  
          assumes that the drafters chose their words purposefully, it is  
          notable that while Article V gives Congress the power to  
          "propose Amendments," the states are not similarly given the  
          power to directly propose amendments.  Instead, the state  
          legislatures make an application to Congress, and Congress then  
          "shall call a Convention proposing Amendments."  In other words,  
          as some scholars have contended, the Framers did not intend for  
          states to necessarily propose specific amendments that Congress  
          would then act upon.  Given that the overall purpose of the 1787  
          Convention was to strengthen the power of the federal  
          government, it is not surprising that Article V leaves it to  
          Congress to "propose" amendments, and only gives the states the  
          power to make an application to Congress to do so.  As such, the  
          resolution's statements claiming that the only power that  
          Congress has under Article V is to "call" a convention, while  
          the state will retain the power to define the scope and set the  
          rules is simply not supported by either the words or the history  
          of the Constitution.  


          Can Congress or the States Limit the Form and Subject Matter of  
          the Constitutional Convention?  This resolution purports to  
          limit power of Congress to merely the ministerial power of  








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          calling a convention once two-thirds of the states have  
          submitted applications having "substantially the same purpose."   
          It also purports to limit the powers of Congress by the terms of  
          the application, noting, for example, that it shall be the  
          states, not Congress, who shall select delegates; that each  
          state will get one vote at the convention; and that the  
          convention will be limited to the specific topics set forth in  
          the application.  Despite the resolution's confident  
          declarations of limiting the power of Congress and the  
          convention, it is not altogether clear that the limitations that  
          are proposed would be effective in limiting either the power of  
          Congress, or the ability of the convention to define the form  
          and scope of the convention. 


          According to the record of the debates regarding Article V, the  
          convention first considered a draft that would have placed  
          Congress and the states on equal terms, insofar as both could  
          "propose Amendments" to the Constitution.  Under this early  
          draft, once two-thirds of the states proposed amendments,  
          Congress would be left with the administrative task of sending  
          the amendments out to the states for ratification.  When the  
          drafters rejected this approach and opted for the current  
          version, however, they left unanswered the questions of just  
          what role Congress would play in the process after a sufficient  
          number of states submitted applications.  Because Article V does  
          not answer these basic questions - such as whether the  
          applications submitted by the states would have to be on the  
          same subject, or perhaps even identical - it would presumably be  
          up to Congress to make this determination.  Nor does Article V  
          say anything about how delegates to the convention would be  
          selected, or whether the convention would be like the Senate,  
          with each state having an equal number of delegates, or like the  
          House, with the number of delegates proportionate to each  
          state's population.  Whether the states can initiate this  
          process by the terms of the application - as this resolution  
          purports to do - is not specified in Article V.   










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          The unanswered question that has generated the most scholarly  
          debate, however, is whether Congress could "limit" the  
          convention to a particular subject matter raised in the state  
          applications.  This debate became particularly intense in the  
          1970s when two issues in particular - abortion and the federal  
          debt - prompted dozens of state applications.  It was in this  
          context that Professors William Van Alstyne and Walter  
          Dellinger, both of Duke University Law School, engaged in a  
          series of law review exchanges on the "recurring question" of  
          the "limited" constitutional convention.  The details of their  
          exchange are beyond the scope of this analysis, but suffice it  
          to say that both constitutional scholars blended an examination  
          of historical documents with prevailing theories of  
          constitutional interpretation to arrive at quite different  
          conclusions.  Van Alstyne argued that both the history and the  
          text support the view that Article V provides for a "limited"  
          convention, stressing the fact that Article V gives Congress the  
          power to call the convention and implicitly the power to  
          structure it.  Dellinger, on the other hand, argued that Article  
          V places no limits on the convention and even suggested that a  
          limited convention might be unconstitutional.  According to his  
          theory, Article V gives Congress the power to propose specific  
          amendments, but it gives the states the power to request a  
          convention.  Nothing in Article V suggests that either Congress  
          or the states, by wording of their applications, could limit the  
          convention's scope.  In the final exchange, Dellinger concluded  
          that both scholars agree that a limited convention would be  
          possible and even appropriate.  But the two sharply disagree as  
          to whom (if anyone) has the power to control the constitutional  
          convention.  Van Alstyne insisted that it could be limited by  
          the application of the states or by Congress. Dellinger insisted  
          that the convention process was envisioned as an alternative to  
          Congress proposing single amendments, and that the convention,  
          once created, is designed to operate independently "of both the  
          possible self-interest of Congress and the potential  
          parochialism of the state legislatures."  (Van Alstyne, Does  
          Article V Restrict the States to Calling Unlimited Conventions  
          Only:  A Letter to a Colleague, 1978 Duke L. J. 1295 (Jan.  
          1979); Dellinger, The Recurring Question of the 'Limited'  








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          Constitutional Convention, 88 Yale L. J. 1623 (July 1979); Van  
          Alstyne, The Limited Constitutional Convention: The Recurring  
          Answer, 1979 Duke L. J. 985 (Sept. 1979) and Dellinger, Who  
          Controls a Constitutional Convention?  A Response 1979 Duke L.  
          J. 999 (Sept. 1979), quote at p. 1000.)


          For those who doubt the prospects of a "runaway convention,"  
          however, one only needs to look at the constitutional convention  
          in 1787.  At the Annapolis Convention in 1786, delegates  
          representing only six of thirteen states decided to convene in  
          Philadelphia the following year to amend the Articles of  
          Confederation.  Not only did the Framers jettison this idea and  
          instead draft an entirely new document, they also threw out the  
          requirements for ratifying any changes.  By its own terms, the  
          Articles of Confederation could only be amended by a unanimous  
          vote of all of the states.  But the Framers decided to replace  
          the Articles with the Constitution by only requiring that nine  
          of the thirteen states ratify the document.  The reason for  
          doing so was pure expedience.  According to Madison in  
          Federalist #40, this change "proceeded from an irresistible  
          conviction of the absurdity of subjecting the fate of 12 States,  
          to the perverseness or corruption of a thirteenth."  Without  
          calling out Rhode Island by name - the only state not to send  
          delegates to Philadelphia - Madison noted that the "inflexible"  
          state that he had in mind amounted to just 1/60th of the people  
                            of the United States.  ("Federalist No. 40," in Federalist  
          Papers, supra, p. 199.) 


          The Broad Scope of AJR 30.  The fact that two respected  
          constitutional scholars studying the same sources can come to  
          different conclusions on the possibility of a "limited"  
          convention may suggest that ultimately there is no certain  
          answer.  One can read the text of Article V and the historical  
          sources on the debates and make a plausible case for either  
          position.  What makes AJR 30 so interesting, however, is that it  
          almost makes the question of the "limited" constitutional  
          convention beside the point.  That is because AJR 30 does not  








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          propose a limited subject matter.  The constitutional convention  
          proposed by AJR 30 claims, as state applications traditionally  
          have, that the convention will be convened for the "sole and  
          exclusive purpose" of considering amendments for the stated  
          purposes.  However, the stated purpose of AJR 30 is, in addition  
          to imposing fiscal restraints, "to limit the power and  
          jurisdiction of the federal government."  As every school boy  
          and school girl learns (or at least is supposed to learn) the  
          Constitution is a limited grant of power to the federal  
          government, with all other powers reserved to the states by the  
          Tenth Amendment.  Articles I through III of the Constitution set  
          forth, respectively, the powers and jurisdiction of the  
          legislative, executive, and judicial branches of the federal  
          government.  Article IV addresses the relative powers of federal  
          government and the states.  Article V, as we have seen,  
          addresses the amendment process and the relative role of  
          Congress and the state legislatures in proposing amendments.   
          Amendment VI contains the supremacy clause, which asserts that  
          the Constitution and the laws of the United States are the  
          supreme law of the land.  In short, every part of the  
          Constitution is almost exclusively about the powers and  
          jurisdiction of the federal government.  An application for a  
          constitutional convention that is "limited" to the powers and  
          jurisdiction is not limited at all.  It would appear to  
          encompass everything. 


          What Would AJR 30 Change in the Constitution?  The Committee may  
          wish to engage the author on what specific amendments AJR 30  
          contemplates.  For example, the author and the language of the  
          resolution claim that the federal government has somehow usurped  
          the legitimate role of the states in the Constitution and  
          "ceased to operate under a proper interpretation of the Tenth  
          Amendment."  [Emphasis added.]  But this seems to suggest - as  
          noted by the Eagle Forum in its opposition letter - the problem  
          is not with the words of the Constitution but with the ways in  
          which those words have been interpreted.  If the existing words  
          are clear but the interpretations are erroneous, as the author  
          and supporters of this resolution apparently believe, how  








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          exactly would the convention change those words?  Or how would  
          the convention restore the "true" meaning of the Constitution?   
          How would one change the words of the Tenth Amendment  
          differently to make its true meaning clearer?  If the problem is  
          in the interpretation of the Constitution, would the convention  
          add an amendment expressly overturning the U.S. Supreme Court  
          that "got it wrong" in somebody's view?  Would, for example, the  
          convention overturn Citizens United and add a qualifier to the  
          First Amendment clarifying that it was only intended to protect  
          the speech rights of flesh-and-blood human beings and not  
          corporations?  Would limiting the power and jurisdiction of the  
          federal government include overturning a federal law banning  
          late-term abortions, since such medical regulations are clearly  
          not a matter of "interstate commerce" as understood by the  
          Framers and are therefore matters properly reserved to the  
          states? 


          ARGUMENTS IN SUPPORT:  According to the author, "the purpose of  
          the resolution is to add California to the list of states that  
          are using their power in Article V . . . to propose  
          constitutional amendments that will restrain the federal  
          government and restore the robust, federal system created by the  
          Constitution."  The author believes that, contrary to the  
          original intent of the Framers, "the power of government has  
          become overwhelmingly concentrated among a relatively small  
          ruling class in Washington, D.C.  This concentration of power  
          has led to out-of-control spending at the federal level and has  
          marginalized the state legislatures."  


          ARGUMENTS IN OPPOSITION:  The League of Women Voters of  
          California (LWVC) opposes this resolution because it believes  
          that "a convention should only be called only if certain  
          conditions are in place.  Among them, we believe representation  
          at the convention must be based on population, rather than one  
          state, one vote, and that delegates should be elected, not  
          appointed, as they represent citizens.  Voting at the convention  
          must be by delegate, not by state."  Finally, LWVC believes that  








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          any application for an Article V convention should be "limited  
          to a specific topic" in order to "guard against a 'runaway  
          convention' which considers multiple issues or topics."  LWVC  
          points out that the topics suggested this resolution - limiting  
          the power and jurisdiction of the federal government - "is so  
          vast it could include numerous and diverse subjects, such as gun  
          rights, social security, Medicare, the Veterans Administration,  
          aid to education, energy, agriculture, NASA, FEMA, international  
          and interstate commerce, the entire military budget and defense  
          spending."


          The Eagle Forum of California opposes this resolution, in part  
          because it believes that the purpose of Article V is to "correct  
          errors and defects," not, as the resolution declarations claim,  
          "to place restraints on excessive uses of federal power."  Eagle  
          Forum notes that the "Constitution already places clear  
          restraints on the federal government through enumerated powers,  
          most of which are listed in Article I, Section 8.  The 10th  
          Amendment makes it clear that all other power is reserved by the  
          States or the People."


          "The Constitution," Eagle Forum adds, "is not the problem."   
          Rather, the problem "is that the federal and State governments  
          have ignored the Constitution, and the People are ignorant about  
          what the Constitution says.  The Constitution needs to be  
          understood, defended, and enforced - not amended or rewritten."   



          Finally, Eagle Forum opposes calling for an Article V convention  
          "because such a convention of the sovereign people would have  
          the inherent right to propose whatever changes to our  
          Constitution the delegates want, including replacing the  
          Constitution itself.  And once called, it will be too late to  
          stop it if we don't like their agenda."  For those who think  
          that delegates could be restrained at such a convention, Eagle  
          Forum draws a comparison with the original constitutional  








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          convention of 1787.  That convention, after all, was only  
          supposed to propose amendments to the Articles of Confederation  
          and have those amendments ratified by all thirteen states: "But  
          the delegates [in 1787] ignored their instructions and wrote an  
          entirely new Constitution.  Furthermore, they changed the mode  
          of ratification.  Whereas the Articles of Confederation required  
          the Continental Congress and all of the then 13 States to  
          approve Amendments before they became effective; the new  
          Constitution provided at Article VII that it would require only  
          9 States for ratification.  There is nothing which can stop  
          delegates to a convention today from doing the same thing."

          REGISTERED SUPPORT / OPPOSITION:



          Support

          Convention of States Project (sponsor)


          Convention of States Action 


          Several individuals 



          Opposition

          Eagle Forum


          League of Women Voters of California


          Several individuals  










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          Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334