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A new state Constitutional Convention?
Analysis shows push for another California Constitutional Convention could benefit voter independence, Green Party

By Mike Feinstein

When most of us hear the term ‘Constitutional Convention’, we think of white men in wigs in Philadelphia in 1787, drafting the U.S. Constitution. 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 Convention. 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 California 1878-79 Convention was convened, and its original 1849 Constitution revised.

Today with the legislature unlikely to place such a measure before the voters, a new path is being explored that would involve two simultaneous November 2010 ballot measures – one to give ‘the people’ the power to call for a convention themselves through a ballot measure, and one that would authorize 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 November 2012.

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 this 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 a budget, followed by eliminating the 2/3 requirement to institute a new tax and amending Proposition 13 to provide for a residential/commercial property 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 budget cycle.

On the legislative side, there has been strong interest in a unicameral legislature, and with it, increasing the number of legislators to provide for smaller 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 a body 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.

A 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 their entire fate in the hands of such juries, and British Columbia had a successful Citizens 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 at-large.

Today perhaps 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.

Other Strategies

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 by design meant to bring together a body reflective of the entire state, without a predestined political agenda.

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 and co-op 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 the world in more representative electoral systems. This in turn could have a major positive effect on public policy by broadening the range of issues, policies and possibilities 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 greater number of seats than their share of the popular vote merits. Conversely, a Convention could present a once-in-a-lifetime opportunity to reform how the 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 a greater voice to the people and distinguish them from most Republican and Democratic candidates. It would provide a critical early platform to promote which reforms need 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 help to them to feel freer to vote for alternatives they believe in. Combined with a system of proportional representation, this could even lead to a California renaissance of democracy, with more people involved with have a greater chance of being heard.