Proposition 8's ban on same-sex marriage unleashed a storm of controversy that has moved to the state Supreme Court. The cases filed there grapple with, among other issues, the fact that the measure isn't just a garden-variety statute passed by the people but an addition to the state Constitution. Amid all the other debates caused by Proposition 8, we need to open one more: Does California make it too easy to amend its Constitution?
Constitutions are supposed to be fundamental documents. Because they outline basic, enduring principles, change and modification should be rare. Understanding this, the nation's founders didn't make it easy to change the U.S. Constitution; they required amendments to gain approval by two-thirds of the Congress and three-fourths of the states. Other entities great and small often follow this basic principle. The National Football League requires three out of every four club owners to approve any change in its constitution; Major League Baseball, a two-thirds vote to change its rules. Even changes in the UCLA Academic Senate bylaws require approval by a two-thirds vote.
By comparison, California's initiative amendment process is simple. To get one on the ballot, you have to gather signatures on petitions -- the number required is 8% of the votes cast for all candidates in the last gubernatorial race. There are businesses that will meet this requirement for a fee. It's a little higher hurdle than getting a regular statute on the ballot by initiative (that requires fewer signatures, 5% of the votes cast for all candidates in the last gubernatorial election).
Legislators also can send constitutional amendments to the electorate to ratify, but such measures must first win the votes of two-thirds of the Assembly and the state Senate. (If you've watched the budget battles in Sacramento, you know how hard it can be to get two-thirds of the state's politicians to agree on anything.)
In either case, once a proposed amendment is on the ballot, it requires only a mere majority -- 50% plus one of those voting -- to change even the most sacred provisions in the state's core document. That's the way it works even if the ballot is crowded with items and many choose not to vote on the initiative amendment. More important, it's the case even if the vote is cast in a primary or other off-year election, when the fewest people come to the polls.
Not surprisingly, the California Constitution is a bloated mishmash by comparison with the hard-to-amend federal document. Instead of a transparent constitution that citizens can understand and use, California has obfuscation, clutter and dysfunction. Eight times the length of the U.S. Constitution, it is more about legal technicalities than principles; an embarrassment for an otherwise cutting-edge state.
Hiram Johnson and other reformers who introduced initiative amendments to California early in the 20th century wanted to supplement -- and, yes, sometimes circumvent -- the Legislature (with its time-consuming processes of deliberation and compromise), but they didn't want to replace it altogether. However, when constitutional amendment by initiative is as easy as we've made it, that's the effect. Why would any interest group with enough money to fund signature gathering and a campaign not prefer initiative amendment to legislative amendment?
Recent history shows that groups understand this and increasingly opt for initiative amendments without presenting their ideas to the Legislature. Indeed, there has been a 30% increase in initiative amendments in the last decade.
Groups interested in fiscal policy have been particularly quick to seek initiative amendments. The result is that the state Constitution is loaded with rules and limits governing money matters that cannot be easily changed. Some of these added provisions are no doubt useful and appropriate, but the overall effect, as the Constitutional Revision Commission suggested more than a decade ago, is to enshrine the status quo and reduce accountability. Initiative amendments did not create the state's current fiscal crisis, but they greatly complicate the task of finding a solution.
Problems caused by previous initiative amendments can often only be fixed by more amendments. Laws passed by the Legislature aren't sufficient. A legislative constitutional amendment is theoretically possible but practically difficult because of the two-thirds-vote requirement. Often the only practical solution is a subsequent initiative amendment -- adding yet more technicalities and detritus to the document.
Protecting the Constitution, and allowing it to be the kind of document it was meant to be, isn't rocket science.
Most other states that allow lawmaking by ballot dealt with the issue long ago. Many simply do not allow use of the initiative for constitutional amendments. Nevada allows it but requires a majority vote at two elections. Also worthy of consideration is requiring something more than a simple majority for final approval.
But one way or another, major change is needed: We believe that the casual way in which the California Constitution can be altered at present is simply unacceptable.
Edward L. Lascher Jr. and Tim Hodson are political science professors at Sacramento State University. Floyd F. Feeney teaches election law at UC Davis School of Law.