BILL ANALYSIS
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Date of Hearing: June 23, 2009
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
ACA 21 (Charles Calderon) - As Introduced: April 1, 2009
SUBJECT : Initiatives: constitutional amendments.
SUMMARY : Requires an initiative measure that amends the state
constitution to receive a two-thirds vote in order to be
approved. Specifically, this measure requires a constitutional
amendment that is proposed by an initiative measure, including
any statutory provisions that are also contained in the
initiative measure, to be approved by two-thirds of the votes
cast thereon in order to take effect.
EXISTING LAW provides that all constitutional amendments,
whether placed on the ballot by the Legislature or by an
initiative, shall take effect if approved by a majority of votes
cast thereon.
FISCAL EFFECT : Unknown. Although this constitutional amendment
is keyed non-fiscal, it has been double-referred to the Assembly
Appropriations Committee.
COMMENTS :
1)Purpose of the Constitutional Amendment : According to the
author:
When Hiram Johnson and the Progressive reformers of the
early 20th century enacted the initiative, referendum and
reform, they did so as a response to a legislative process
hijacked by monied interests, in particular the Southern
Pacific Railroad who at the time held a virtual
stranglehold on all levels of state politics. It was, in
the words of Johnson, a way for Californians to "arm the
people to protect themselves."
In his 1911 inaugural address, Johnson said:
While I do not by any means believe the
initiative, the referendum and the recall are the
panacea for all our political ills, yet they do
give to the electorate the power of action when
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desired, and they do place in the hands of the
people the means by which they may protect
themselves.
In light of the original intent of Johnson and the
Progressives, it is ironic that the very process
intended to protect the electorate from the special
interests has been perverted into a system that
provides direct democracy to the people with the most
money, allowing them to evade the deliberative process
of the Legislature and the constitutional system of
checks-and-balances.
This is especially dismaying when one considers that
the majority of initiatives come in the form of
constitutional amendments. When a constitutional
amendment originates from the Legislature, it is
subjected to the highest scrutiny and a series of
checks-and-balances. It must survive, at the very
least: policy committee in the house of origin, 2/3
vote in the house of origin, policy committee in the
second house, 2/3 vote in the second house . . . [and]
a vote of the electorate. That is [5] steps for a
constitution amendment with no fiscal impact, with
more steps for amendments that must go before a policy
committee. These steps ensure a deliberative process
that is designed to craft the best possible changes to
a document that reflects the fundamental laws that
govern us.
This is in stark contrast to a constitutional
amendment via initiative.
When a constitutional amendment originates from the
initiative process it is subject to only two steps:
signature gathering and a majority vote of the
electorate. There is no deliberation. There is no
vetting. There is no testimony. All of these are
replaced by commercials and 30 second soundbites that
often distort the issues and appeal to the lowest
common denominator. There are no real constitutional
checks and balances, save for potential legal
challenges. An initiative to amend the constitution
requires one thing: money, and lots of it. It is no
wonder that the initiative process has increasingly
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become the tool of choice for people who want to
change state policy without having to navigate the
legislative process. Those monied interests Hiram
Johnson and the Progressives sought to protect us
against with the initiative now use the initiative to
forward their interests. This is important to note,
as constitutional amendments, once approved by voters
are "set in stone" barring another constitutional
amendment. This means that regardless of drafting
errors or unintended consequences, the legislature is
unable to act on them. This phenomenon is an erosion
of legislative power.
ACA 21 will serve as a check on the power of this
fourth branch of government (a power that was never
envisioned to be used in the way it is being used
today) by imposing a 2/3 vote requirement for any
initiative that seeks to amend our state's
constitution. This is in line with the supermajority
required for legislative action and will ensure that
the constitutional option only be used in the most
necessary of times.
2)Initiative Constitutional Amendment History : In the last
decade, California voters have voted on 62 initiative
measures. Of those 62 measures, 32 proposed amendments to the
state constitution (16 proposed amending only the state
constitution, while another 16 proposed both constitutional
and statutory amendments). During that time, only about 22
percent of initiative measures that amended the constitution
were approved, compared to 43 percent of initiative measures
that made only statutory changes.
3)Is the Two-Thirds Vote Requirement an Insurmountable Barrier ?
Under this measure, an initiative constitutional amendment
would require approval by two-thirds of voters statewide to
take effect. This vote threshold is so high that it may serve
to prevent any initiative constitutional amendment from being
authorized by voters in the state ever again. Since 1935,
only four initiative constitutional amendments have surpassed
this threshold, and none have done so since in more than 20
years. The last initiative constitutional amendment to
receive more than two-thirds of the votes was Proposition 63,
which appeared on the ballot in November 1986. Prop. 63,
which proposed to make English the official language of the
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state of California, was approved with 73 percent of the vote.
Given these facts, even if it is the committee's desire to
increase the vote threshold for voters to approve initiative
constitutional amendments, it is unclear whether a two-thirds
threshold would be appropriate. Given California's recent
history with initiative constitutional amendments, a
two-thirds threshold for approval for initiative
constitutional amendments could nearly impose a de-facto ban
on initiative constitutional amendments in the state.
4)Locking in the Status Quo ? One of the potential impacts of
this constitutional amendment could be to lock-in the current
version of the constitution with respect to certain
controversial issues. As detailed above, initiative
constitutional amendments rarely receive two-thirds of votes
cast, and none have done so in the last two decades. On the
other hand, a number of controversial initiative
constitutional amendments have been approved in recent
elections by a slim majority. Because of sharply divided
public opinion on those issues, it would be unlikely that any
effort to repeal or modify those controversial measures would
be able to attract a two-thirds vote, either of the voters
through the initiative process, or of the Legislature to place
a constitutional amendment on the ballot that would then only
require a majority vote.
For instance, at last November's general election, Proposition
8, which prohibits same-sex marriage, was approved by 52
percent of voters. A number of proposed initiative measures
already have been submitted to the Attorney General to repeal
Proposition 8, and opponents of Proposition 8 have indicated
their intent to collect signatures to repeal Proposition 8
either next year or in 2012. However, if this measure were to
be approved by the Legislature and voters, it would take a
two-thirds vote of the people to repeal Proposition 8, even
though the measure received far less than two-thirds of the
votes when it was approved.
The committee may wish to consider whether it is appropriate to
require a two-thirds vote to approve an initiative
constitutional amendment even when that initiative
constitutional amendment simply seeks to modify or repeal a
previous initiative constitutional amendment that was approved
by less than a two-thirds vote.
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5)Supermajority Vote Requirements : Currently, all state ballot
measures require a simple majority to be approved by the
voters, regardless of the changes to state law made by the
ballot measure. This measure is one of two (see below)
proposed by this author that is being heard in committee today
that would require a supermajority vote for certain types of
initiative measures. If either of these two constitutional
amendments is approved by voters, it would mark the first time
that any measure that appears on the state ballot would
require more than a simple majority to be approved by voters.
6)Arguments in Support : The American Civil Liberties Union
(ACLU) takes a support if amended position on this measure,
requesting an amendment to allow any previous constitutional
change that was enacted by a simple majority vote to be
repealed by a simple majority vote. In support of the concept
of a two-thirds vote requirement for constitutional
amendments, the ACLU argues that supermajority vote
requirements can "encourage deliberation and prevent rash or
ill-considered changes to an enduring document, the
Constitution."
7)Related Measure : ACA 5 (Charles Calderon), which is also
being heard in this committee today, would require initiative
bond measures to be approved by 66 percent of voters in order
to take effect.
8)Double-Referral : Although this measure has been keyed
non-fiscal by the Legislative Counsel, it has been
double-referred to the Assembly Appropriations Committee. In
recent years, non-fiscal constitutional amendments regularly
have been referred to the Assembly Appropriations Committee
because the state incurs costs to add additional pages to the
state ballot pamphlet whenever it places a measure on the
ballot for voter approval.
9)Approval of Voters : As a constitutional amendment, this
measure requires the approval of the voters to take effect.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union (if amended)
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Opposition
None on file.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094