BILL ANALYSIS
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Date of Hearing: July 15, 2009
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
ACA 21 (Charles Calderon) - As Amended: July 8, 2009
SUBJECT : Initiatives: constitutional amendments.
SUMMARY : Permits the Legislature to propose amendments to
provisions of the Constitution that were enacted or amended by
an initiative through the passage of a bill. Specifically, this
constitutional amendment allows the Legislature, by a bill
passed by a majority of the membership of each house and enacted
into law in the same manner as any other bill, to propose an
amendment to any provision of the Constitution that was added or
amended by an initiative measure, and allows the Legislature to
amend or withdraw its proposal in the same manner.
EXISTING LAW allows the Legislature to propose an amendment to
or a revision of the state Constitution by a two-thirds vote of
the membership of each house of the Legislature.
FISCAL EFFECT : Unknown
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
desired, and they do place in the hands of the
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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
become the tool of choice for people who want to
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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 creating a system whereby the legislature,
with approval by the executive branch may amend an
initiative constitutional amendment.
Under the provisions of this measure, the legislature
may amend or repeal an initiative constitutional
amendment by a simple majority vote of both houses and
a signature of the Governor. Upon approval by the
Governor, the amendment or repeal of the initiative
constitutional amendment returns to the ballot for
approval by the electorate.
2)History of Initiative Constitutional Amendments : Since the
creation of California's initiative process in 1911, 331
initiative measures have appeared on the statewide ballot, of
which 111, or about a third, have been approved. Of the
initiative measures that appeared on the statewide ballot, 146
(about 44 percent) proposed amendments to the state
constitution, while the remaining 185 proposed statutory
changes only. Initiatives that propose to amend the state
constitution have been slightly less likely to be approved by
voters, with an approval rate of slightly less than 29
percent, compared to a 37 percent approval rate for initiative
measures that propose statutory changes only.
3)Two Options : Under existing law, the Legislature may propose
an amendment to the state Constitution by a two-thirds vote of
each house of the Legislature. Once approved by the
Legislature, such a proposal does not go to the Governor for
his or her signature, but instead goes directly to the ballot
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at a statewide election. If voters approve the proposed
constitutional amendment by a majority vote, that
constitutional amendment goes into effect.
This measure would provide the Legislature with a second option
to propose certain types of constitutional amendments. For
any provision of the constitution that was added or amended by
an initiative measure, this measure would allow the
Legislature to propose an amendment to that provision through
the enactment of a bill. Such a bill would require a majority
vote of each house of the Legislature. Additionally, as with
any other bill, a bill proposing an amendment to the state
Constitution would go to the Governor for his or her approval.
As with any other bill, the Governor could sign the bill or
allow the bill to go into effect without his or her signature,
in which case the proposed constitutional amendment would
appear on the ballot at a statewide election, or could veto
the bill, in which case the proposed constitutional amendment
would not appear on the ballot unless the Legislature overrode
that veto.
According to the author, it is his intent that the Legislature
would still have the ability to propose an amendment to a
provision of the constitution that was added or amended by an
initiative measure by a two-thirds vote of each house of the
Legislature and without the Governor's approval. However, as
currently written, it appears that this bill may actually
limit the Legislature's ability to propose amendments to the
state constitution, as opposed to providing a second method in
which the Legislature may propose amendments to provisions of
the constitution that were enacted by the initiative process.
To clarify the author's intent, committee staff recommends the
following amendments to this bill:
On page 2, strike out line 21, and on line 22, strike out "the"
and insert:
SECTION 1. (a) The
On page 2, line 27, strike out "The" and insert:
In addition to the procedure provided in subdivision (a), the
4)Prospective Only ? According to the author's office, it is his
intent that this measure apply only to initiative
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constitutional amendments that are enacted after the effective
date of this measure. For any initiative constitutional
amendment that is currently in effect or that goes into effect
before the effective date of this measure, the Legislature's
only option for proposing an amendment to those constitutional
provisions would be a two-thirds vote of each house of the
Legislature.
However, as currently drafted, it appears that this measure does
not accomplish that goal. To ensure that this measure applies
prospectively only, committee staff recommends the following
amendment to this measure:
On page 2, line 30, after "3" insert:
on or after the effective date of the measure that added this
subdivision
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REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
None on file.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094