Instant Cliff Notes on the Constitutional Convention

Joe Mathews
Connecting California Columnist and Editor, Zócalo Public Square, Fellow at the Center for Social Cohesion at Arizona State University and co-author of California Crackup: How Reform Broke the Golden State and How We Can Fix It (UC Press, 2010)

After two readings, here’s my cliff notes version of what’s
in the proposed initiative to call a constitutional convention.

Aren’t
there two initiatives?

Yes. There are. The first is easy to understand. It changes the constitution to permit the voters to call a convention directly – thus paving the way for the second initiative, which sets out how such a convention would be put together. There are a couple pieces of news here: Any limits placed on conventions by the initiatives calling them would be “judicially enforceable.” And the people would have to wait 10 years after the last convention before they attempt to call another.

What’s the stated reason for
fixing the constitution?

The current one is beyond
saving. To quote from the initiative: "The
current Constitution was drafted over one hundred years ago, and has been
amended more than 500 times to a point where its original intent is no longer
recognizable, and its implementation is no longer feasible." The goal of a
convention: "to facilitate a functional government for our State."

So what about that all-important 2nd
initiative? How would you describe it?

Long and complicated. It runs more than 8,000 words.

Here are some
highlights:

Get ready for your close-up, Fair
Political Practices Commission.

The body – often
criticized as toothless and ineffective — is supposed to be a political
watchdog, enforcing campaign, lobbying and conflict of interest laws at the
state and local level. This initiative gives the FPPC a huge new role,
effectively putting the five-member body in charge of the convention.

The five FPPC
commissioners or their designees, reconstituted as a new convention commission,
will make sure a convention is convened before June 3, 2011, determine its
exact dates and locations, hire the staff and lawyers, and get to have the
final say on the eligibility of selected delegates to the convention (and on
whether any delegates need to be kicked out of the convention).

The FPPC also
will be in charge of providing training and education for the delegates – a
hugely important role, since the delegate selection rules are written in a way
that will keep out just about anybody who has had any recent acquaintance with
state government.

Let me make a
fearless prediction: Ross Johnson, the FPPC’s chair, is about to become very,
very popular.

Who is eligible to be a delegate?

Anyone who is 18, a citizen of the United States and a resident of California — and is not a convicted felon and has not committed the crime of being involved in the government and politics of the state in the last four years. The specifically banned include:

-Anyone who has
been appointed to a federal, state or local office, agency or commission in
California, including state or county central party committees, since 2005.

-Anyone who has
worked for or been an officer a political party, candidate, or candidate
political committee formed or operating after 2005.

-Anyone who has been
a registered state or local lobbyist or has received any income from such a
lobbyist or lobbying firm since 2005.

-Anyone who has
been a paid staffer to any state agency or commission since 2005.

How are the delegates to be
selected?

Hold onto your hats. And take a deep breath. This is going to
make your head hurt.

There isn’t one
delegate selection system. There are three. The first is for selecting 240
delegates by Assembly district. The second is for selecting delegates by
county. And the third is for selecting four delegates by Indian tribes.

The Indian tribe
selection is relatively easy to explain. There are four federal districts for
tribes in each state. The tribes in each of those districts powwow (apologies)
and select a delegate.

The other two
systems are more complicated. Let’s take ‘em one at a time.

1.    
Assembly
district selection.

There will be
240 delegates selected this way-exactly three, no more and no less, from each
Assembly district.

How? This is the
lottery-jury-reality TV portion of the competition. There are two rounds of
random selection followed by an election among those who are randomly selected.
Yeah, some people are gonna get voted off the island.

Here are the
dirty details. First, the state auditor selects at random the names of 400
people in each Assembly district who are residents of that district. The random
selection can be done from voting lists, vehicle records, telephone directories
or other databases. A bit of news here:
you don’t have to be a registered voter to be randomly selected as a delegate.

The 400 people
in each Assembly district who are randomly selected get a letter from the
auditor. From the population of those who write back to say they want to be a
part of the convention, the auditor randomly selects 50 in each district and
invites them to attend a two-day meeting conducted by the FPPC (in its role as
the new Constitutional Convention Commission). If the auditor doesn’t get 50
replies, then everyone who replies to the letter gets to come.

Those who reply and
go to the meeting are asked to certify that they meet the delegate eligibility
rules. Then the twice-randomly-selected from each assembly district elect by
secret ballot three people from among themselves to be delegates. They’ll also
pick two alternates. (Bummer about the secret ballot, but – TV producers take
note – the initiative has no language preventing the ballots from being opened
on live TV with reaction shots of the losers).

2. County
delegate selections.

There
will be one county delegate for every 175,000 persons residing in a county of
the state. Each county gets at least one delegate. But after that, you need
175,000 for another delegate. If you’re a county with 1 person or 349,999
people, you’ll have the same representation: one delegate.

Who
picks these county delegates? Politicians. (ALERT: Initiative is politically
vulnerable right here!)

Here’s the
process. Each county will have a delegate selection committee of five people
that generally will include two members of the county board of supervisors, two
mayors, and one person selected by school boards in that county. These county
delegate selection committees can’t pick whomever they want. They have to
establish criteria, have public meetings, have people apply, etc. Delegates are
chosen by a majority vote of the five person county committee.         

There are
exceptions to this system. Delegates from the state’s three largest cities -
Los Angeles, San Diego and San Jose – are to be chosen by majority vote of
their city councils. Before the fourth largest city, San Francisco, protests,
let me remind you that San Francisco is its own county, so there’d be no point
in exempting you. And before cities #5 (Fresno) and #6 (Sacramento) start
complaining, let me remind you two that you’re a lot smaller than the top 4 and
that nobody really likes you.

The initiative
uses Los Angeles and some scary long division to explain the big city
exemption. The actual text:

"The number of delegates
selected by the City Council shall be in
proportion to the total population
of the County in which the City lies, and the total number of
delegates selected from the County,
rounded to the nearest whole number percentage and whole
number of delegates.  For example, if a County has a
population of 10,393,185 and a City within that County has a population of
4,065,585, the delegates from that County shall be selected as follows:  (1) The total number of delegates
allotted to the County shall be calculated by dividing the total population by
175,000, and rounding to the nearest whole number-in the example given,
10,393,185 divided by 175,000 is 59.38, meaning that the County will send a
total of 59 delegates to the convention; 
(2)  The proportionate
percentage of the City population shall be calculated by dividing it
by the total population of the County and rounded to the nearest whole
number percentage-in the example given,
4,065,585 divided by 10,393,135, rounded to the nearest whole number
percentage, is 39%, meaning that the City Council will select 39% of the 59
delegates from the County; (3) The applicable number of delegates is
calculated, rounded to the nearest whole number-in the example given, 39% of 59
delegates, rounded to the nearest whole number is 23. Therefore, in the example
given, the City Council will select 23 of the County’s 59 delegates, and the
County Delegate Selection Committee will select 36 of the County’s 59
delegates."

All
right, now we return to the English language to discuss what the convention
will be about.

The convention is limited to four areas, all
goo goo stuff.

Parse
the exact text for yourselves, kids:

"1) Government Effectiveness, including a
method for periodically reviewing each
State agency, department, board and commission to determine whether it is
performing its functions to meet the needs of the people of the State and
whether it should have its enabling legislation modified, be merged into
another new or existing entity, or cease to exist."

"(2) Elections and Reduction of Special
Interest Influence, including the initiative
and referendum process, the election of state office holders, campaign finance,
term limits, and ways to increase legislative responsiveness, reduce gridlock
and produce full representation of all Californians.

"(3) Spending and Budgeting, including the budget
process and related requirements,
the term and balancing of a budget, voting thresholds, mandated spending, and
ways to increase fiscal accountability and efficiency.

"(4) Governance, including the relationship
between the state and local governments,
and the structure of the legislative and executive branches of government.

So what’s not on the table?

Raising
or reducing taxes and fees. Specifically, the convention’s revisions,
amendments or suggested statutory changes "may not include new language, or

alter
existing language, that (1) directly imposes or reduces any taxes or fees; (2)
sets the

frequency
at which real property is assessed or re-assessed; or (3) defines "change in
ownership’ as it relates to any tax or fee.’"

Also
off the table is all the fun stuff: marriage or abortion rights, gambling or
casinos of any type, affirmative action, freedom of the press, freedom of
religion, immigration rights, or the death penalty.

OK, so now that we know this thing will be a
bloodless snoozefest, tell us: how will the convention be run?

The
chief justice of the California Supreme Court will kick things off at the big
opening photo op. But the clerk -who is hired by the FPPC – has a ton of power.
The clerk can speak for the convention when the convention is not in session.
The clerk also may present a schedule and a plan, and will write a report on
what happens. The clerk is a non-partisan position and must abide by the rules
of an FPPC commissioner (can’t be holding any other public officer, serving as
an officer of a party or partisan organization, participating in campaign, or
working as a lobbyist).   

Memo
to CTA, the prison guards, the oil industry, big tobacco, the pharmaceutical
boys: you best be sure the clerk is one of yours. Important point that might
just come up some day: the clerk can be fired by the convention, but only by a
two-thirds vote. (That’s special protection-the convention runs on majority
rules in just about everything else).

How much is this going to cost Juan Q.
Taxpayer?

The
delegates will be paid the same rate as the lowest-paid state legislators. The
initiative requires that $1.75 per California resident be transferred from the
state general fund to fund a convention. My quick back-of-the-envelope math
puts the initial budget at $65 million. That can be increased, but there’s a
cap of $95 million. Which, strictly by a point of comparison, was the estimated
2009 payroll of the Los Angeles Dodgers. And they couldn’t even make the World
Series.

The
convention’s sessions-all of them-must be public. A majority of the delegates
must be present for a quorum. (My suspicion is that getting a quorum might
prove difficult at times, given the fact that the convention delegates will not
be the most public-spirited among us. But maybe we’ll see).

Will it ever end?

The
convention has a deadline of March 1, 2012 for completing its work. The time
can be extended by a two-thirds vote of the convention, but there is an
absolute drop-dead deadline of July 1, 2012. Within 7 days after the convention
adjourns, the governor calls an election (that will be designated special but
will be consolidated with an existing statewide election).

That
election can take place no later than Nov. 6, 2012.

So
if all goes well, the state could have a new constitution three years from next
Friday.

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