The most interesting thing about the New America Foundation think tank’s recent Sacramento seminar on replacing the California state constitution with something unknown and unpredictable was that even the foundation’s designated election law expert had to admit the “Pandora’s Box” problem.
For months, the business-sponsored Bay Area Council and others who want to tinker with the fundamentals of this state’s governance have claimed they can limit matters to be covered by the constitutional convention they would like to call, a putative gathering known to some by the shorthand term “Con-Con.”
A ballot initiative calling such a convention, they’ve said, could guarantee that there will be no changes in the property tax limits set under Prop. 13, for just one example.
But it’s not necessarily so. As election lawyer James Harrison told the seminar, the best example of a constitutional convention deviating from all plans was the first one: the 1787 convention that drew up the U.S. Constitution.
That convention was supposed to revise the ailing Articles of Confederation. But delegates quickly gave up on that weak document and instead produced a new plan that led to a much stronger national government,
Similarly, the only real limit on what a state constitutional convention might do is that its final product would have to be approved by a vote of the people. Approval would take only a majority vote, not even the 55 percent semi-supermajority now needed to approve such relatively trivial matters as local school construction bonds.
Which means the Pandora’s Box problem is very real. Open a convention and there’s no way to tell what might come out.
So Much for Staples of Law
Not only might a convention get rid of Prop. 13, it might also eliminate the stronger-than-federal California abortion rights signed into law by the late Gov. Ronald Reagan. It might decree that gasoline tax money can be used for all sorts of things besides transportation and roads, or it might make big changes in labor laws. It could do as it wished with gay rights, gun control, offshore oil drilling, criminal sentences and a host of other major issues including some that were allegedly resolved many years ago. Bottom line is that a constitutional convention could do just about anything it wanted. The only check on it would be that final up-or-down vote of the people.
What it might do, of course, would largely be a function of who is in it. That was a completely open question until mid-August, as the current constitution offers no guidance on who might participate. The New America Foundation, a Washington, D.C.-based outfit that has had a California arm for less than 18 months, wants delegates chosen randomly in a manner similar to juries. That way, says the group’s political reform program director, it could be completely representative. No elitism for this think tank, which draws its funding from rich foundations and big businesses like Comcast, Blue Shield and Microsoft. So there would be no careful vetting of delegates, as there was for that original 1787 convention. That way, you could have more many car wash workers than political science professors among the delegates.
Identities Are Hidden
But the first of what figure to be a spate of proposed initiatives on the subject, which entered circulation Aug. 14, don’t even try to limit subject matter and call for popular election of 400 delegates. These proposed measures seek to keep things Simon-pure by imposing strict campaign spending limits of a sort that’s been found unconstitutional (federally) many times before and by ordering delegates’ names kept secret until the vote results are certified and all 400 of them, plus their staff, are sequestered — with all outside contact forbidden.
Of course, that doesn’t account for polling, which would indicate who the likely delegates will be long before they’re chosen. Nor does it prevent special interest groups from running their own candidates. So this plan is no more workable than the New America Foundation’s notions. Chances are the current measures won’t get close to the 694,354 valid voter signatures needed to put them on a special election ballot.
Which leaves Californians back at square 1, still pondering what a convention might cover and whether it would be filled with as many illiterates as university professors.
What problems do the Con-Con backers say they want to fix? They’d like to end the current two-thirds majority requirement for passing state budgets and new taxes. They want to end some aspects of the initiative process; especially they don’t want voters setting priorities for how their tax money will be used – ballot box budgeting, they call this. In short, they’d like state government to run more smoothly, regardless of what the people might want.
But it may not matter much what current backers want to do. Once a convention were convened, it could do whatever it liked, just like the first one.
Which means calling a constitutional convention would be very risky business, especially since every fix the current backers say they want to make can be done with an old-fashioned ballot initiative. And of course, the Con-Con con also might create far more new problems than it solves old ones.
Mr. Elias may be contacted at tdelias@aol.com
For more of his columns, visit www.californiafocus.net
