BILL ANALYSIS �
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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 �but 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?�It] 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 . . . . �and]
'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 �Article 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). . . . �A] 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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