A new state Constitutional Convention?
Analysis shows push for another California
benefit voter independence, Green Party
By Mike Feinstein
most of us hear the term ‘Constitutional Convention’,
we think of white men in wigs in Philadelphia in 1787, drafting the U.S.
But California has had its own Constitutional Convention – actually
two. Now there is talk of a convening third, possibly as soon as 2011.
What could this mean
for our state and for the Green Party?
Path to a Constitutional Convention
The California Constitution gives the legislature the ability by a
2/3 vote, to place before the voters whether there should be a Constitutional
If passed by a majority, "the Legislature shall provide for the convention”;
after which the Convention would meet and the changes it recommends be
placed on the ballot as a single measure for a majority vote. This is how
1878-79 Convention was convened, and its original 1849
Today with the legislature unlikely to place such a measure before the
voters, a new path is being explored that would involve two simultaneous
2010 ballot measures – one to give ‘the people’ the power
to call for a convention themselves through a ballot measure, and one that
a specific convention with a specific focus. If both passed, the convention
could convene in 2011, and its recommendations on the ballot as early as
Scope of the Convention
Many people think that once a convention is called, ‘everything is on
the table’. This is not necessarily so. Under the scenario above, the
ballot measure authorizing the Convention would establish its scope. Therefore
the question is “what are the problems the Convention is trying to solve” and
from that, define its scope.
For many, the state is structurally ungovernable, in perpetual structural
financial deficit and the legislature has not passed a budget on time in
23 out of the
last 32 years. Therefore a Convention should be narrowly focused on reform
of the budget and legislative process, ballot initiatives and perhaps a
few other specific aspects of how the state is governed and financed. For
reason, there is general sentiment to limit the Convention to structural
reforms and not address social issues and individual rights.
The budgetary issue that appears to unite Convention enthusiasts the most
is eliminating the 2/3 requirement necessary for the Legislature to approve
budget, followed by eliminating the 2/3 requirement to institute a new
tax and amending Proposition 13 to provide for a residential/commercial
tax split roll. There is also a desire to redress the fiscal relationship
between the state and cities, how education is funded and implement a two-year
On the legislative side, there has been strong interest in a unicameral
legislature, and with it, increasing the number of legislators to provide
legislative districts with fewer voters per representative. This has been
joined by advocates
of proportional representation and instant run-off voting, including many
Greens, who see an opportunity for a legislature more truly representative
of the state’s
diversity and with it, perhaps policies and practices that are more likely
to work for California.
How are Delegates Chosen?
The delegate selection process is not prescribed in the state’s Constitution,
except that delegates must geographically represent proportionate amounts of
population. Courts across the U.S. have ruled that Constitutional Convention
delegates do not necessarily need to be elected, since a Convention is not
a “governing body” but a “recommending body.”
As a result, there are at least three fundamentally different models being
discussed – by election, application/appointment, and/or a random “jury
pool” process. Between now and when the text of the ballot measure
is written, the task is to work through what which among them, or some
hybrid, would be best. This is critical because the process must both render
capable of making good recommendations, and one that can capture the imagination
of Californians, so they feel ownership of the process and ultimately vote
for its results.
If chosen by election, in order to meet “one-person, one-vote” standards
and requirements under the Voting Rights Act and to avoid having to create
something entirely new, delegates would likely come from State Assembly, Senate
State, Board of Equalization or Congressional districts, or some combination
of the above. However by replicating the current system, such an approach could
be seen as replicating the very problems the Convention would be authorized
to fix. For example, there is no reason to expect that such an election processes
would not be largely influenced by political party endorsements, slate cards,
direct mail campaigns and candidates who can either self-fund or raise/spend
a great deal of money, nor should one expect that ‘special interest money’ wouldn’t
find its way into the process.
As an alternative, some have argued for an application process similar to that
approved by California voters in Proposition 11 in November 2008, which provides
a filtering process to weed out obvious interest group biases, while promoting
qualified delegates to apply to serve. The downsides of this process include
the perception that the appointments may be still be political, and that the
system is difficult to explain and may be rejected for its complexity.
third option is selecting delegates by jury pool, to ensure that interest
groups do not “game the system.” A principle already widely
enshrined in the nation’s traditions, if it yields a body truly representative
of the state’s diversity, that diversity could provide an inherent
check-and-balance towards the common good. However delegates will not be
experts, and may require considerable education to make informed decisions.
Yet defendants routinely place
fate in the hands of such juries, and British Columbia had a successful
Assembly chosen by jury pool selection. That Assembly ultimately recommended
a form of proportional representation for the provincial legislature that
received 58.5% approval from the voters.
Another concern is that while random, a jury pool process may nevertheless
not reflect the state’s diversity, depending upon the number of delegates
chosen. Therefore the question of how many delegates is in play. In other
states, the general practice has been to be roughly comparable to the legislature,
which in California’s case is 120. In 1878-79,
there were 152 delegates: three from each Senate district and 32 more
a much larger number would be necessary. One alternative is that 1787 Convention
in Philadelphia, which had 55 delegates from a U.S. population of approximately
3.8 million. With California's population estimated at 36,750,000 in 2008,
the same ratio would render a new Convention here of approximately 530.
Why not approach California’s problems with individual ballot measures?
Perhaps the main reason is that a Convention offers the opportunity to provide
an integrated package of reforms that are stronger if all passed. In addition,
qualifying several ballot measures takes an enormous amount of human and financial
resources, which could be combined simply to qualify the November 2010 Convention
ballot measures and then work to pass the Convention’s recommendations
upon its conclusion. Finally, whereas individual ballot measures are
seen as the product of interest groups, a Constitutional Convention is
to bring together a body reflective of the entire state, without a predestined
Of course the Legislature could put something on the ballot. But the
lack of confidence in the Legislature’s willingness to confront systematic structural
reform is part of what has given birth to today’s Constitutional Convention
movement. What if the threat of a Constitutional Convention forced the Legislature
to act? That is the angle being played by some. While such an approach could
lead to some good, it doesn’t warrant delaying organizing to wait
for it. Furthermore, its is very possible that the Legislature will try
the Convention by offering some, but not enough reforms to truly address
the crisis the state is in.
Green Party Opportunities
The possibility of a Constitutional Convention offers multi-level opportunities
for the Green Party.
• Proportional Representation
If California had a system of proportional representation -- which
rewarded Green voters rather than disincentivized them – the Legislature
would likely be 5%-25% Green, based upon the experience of Greens around
in more representative electoral systems. This in turn could have a major
positive effect on public policy by broadening the range of issues, policies
discussed in the state.
On their own, the Legislature’s Democrats and Republicans have
little reason to change a system that reward them with a disproportionately
number of seats than their share of the popular vote merits. Conversely,
a Convention could present a once-in-a-lifetime opportunity to reform
Legislature is elected to a more fair system.
Not only would this be better for the state as a whole, because it would more
accurately represent our diversity; but there is every indication that within
it, the Green Party in California would also thrive.
• Campaigning for the Convention
One 2010 Green strategy is to run a slate of State Assembly candidates on a
common platform on key statewide issues, and show the party has practical
alternatives and can help govern the state.
If support for the November 2010 Convention ballot measures were part
of this platform, it would identify the Greens as in favor of giving
to the people and distinguish them from most Republican and Democratic
candidates. It would provide a critical early platform to promote which
to considered by the Convention.
• Empower the People
Perhaps on the macro level, the Constitutional Convention provides
a rare opportunity for ‘the people’ to make systematic change
through direct, democratic means. A movement that empowers Californians
in this way will also
them to feel freer to vote for alternatives they believe in. Combined
with a system of proportional representation, this could even lead to
renaissance of democracy, with more people involved with have a greater
chance of being heard.