The Call of a Constitutional Convention

My old friend Bill Cavala has metamorphosed into such a creature of the Legislature –– “a veteran of over 30 years in Sacramento,” his blog taxonomy trumpets –– that the only explanation he can muster for those who believe Californians can bypass the Capitol to call a constitutional convention is that the reformers are “slow.”

It’s an odd charge coming from someone 98 years behind the times.

According to Cavala, the only legal path to a convention leads through the Legislature. Against all the lawyers who have opined that voters can give themselves the authority to put a convention call on the ballot, a power currently reserved to the Legislature, Cavala offers up the uncited authority of Joe Remcho, the famous political lawyer. Remcho, alas, is no longer around to tell us that approach would be struck down by the California Supreme Court as an impermissible “revision” of the constitution.

Not being a lawyer, I won’t join Cavala in making firm predictions about how the court would rule on that question. But as a historian and a long-time watcher of California politics and law, I do feel comfortable pointing out that, when the voters have horned in on the Legislature’s powers, the courts have almost always looked the other way.

It started, of course, in 1911, when voters approved the initiative, referendum, and recall. They amended the constitution to reserve “to themselves the power to propose laws and amendments to the constitution, and to adopt or reject the same, at the polls independent of the legislature.” Though they graciously bowed in the direction of the Legislature, vesting in it “the legislative power of this state,” they left no doubt who wears the pants in this family. The 1911 measure specified that, henceforth, the enacting clause of every law would read: “The people of the State of California do enact as follows.”

Talk about your revision of the constitution. As Sen. Leroy Wright wrote in opposition to the measure in the 1911 ballot pamphlet, “it is so radical as to be almost revolutionary in its character. Its tendency is to change the republican form of our government and head it towards democracy…” But the California courts did not balk at this far-reaching revision (and reduction) of the Legislature’s role as the central law-making body of the state. (Perhaps they had their eyes on another measure on that 1911 ballot, passed by a far larger margin, which authorized voter recall of judges.)

And so it has gone for the last century. Time and again the voters have hacked away at the Legislature’s once-central constitutional role: limiting lawmakers’ terms; taking away their power to set their own salaries; capping the size of the Legislature’s budget; imposing supermajority vote requirements in the Legislature for spending and tax increase bills; specifying how money lawmakers must budget for schools and other programs.

And time and again the courts have stood aside. Only once, in 1984, in a pre-election challenge, did the California Supreme Court block an initiative impinging upon the Legislature as an illegal revision of the constitution. That measure would have required the Legislature to pass a resolution calling on Congress to pass a federal balanced budget amendment. The legal rule seems to be that the people can pretty much do what they like to the legislative branch except put words into its mouth.

Right now, the path to a new state constitution has six steps:

1) The Legislature puts the question to voters whether they want to call a convention.

2) The people approve it.

3) The Legislature provides for electing delegates to the convention.

4) The people elect the delegates.

5) The delegates debate and draft a revised constitution to put on the ballot.

6) The people vote it up or down.

It’s possible the court would rule that allowing the people to put the question to themselves in Step 1 of a process that the people dominate would amount to “a substantial alteration of the entire Constitution,” the court’s definition of a revision. But how likely?

“All political power is inherent in the people…,” the state constitution says, “and they have the right to alter or reform” their government “when the public good may require.” Perhaps there are four justices on the court who will look at that language and then rule that the people have all political power to reform their government but only if the Legislature agrees to let them do it.

I may be “slow,” but given the court’s hundred-year-long record of letting voters shrink the Legislature’s constitutional role, it doesn’t seem to me the smartest way to bet.