The wrong fix for California

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Erwin Chemerinsky is dean of the law school at UC Irvine.

Since the defeat of the budget initiatives on May 19, the pressure has been mounting for a constitutional convention to deal with the state’s underlying structural problems. As California plunges further into fiscal crisis, this newspaper and others, as well as pundits across the state, have endorsed the idea. But I believe it’s a false hope.

My experience as chairman of a similar convention -- an elected commission created in 1997 to propose a new Los Angeles city charter -- makes me skeptical that a constitutional convention can provide a solution to the serious problems that face the state.

It’s not that I disagree about the roots of the crisis. The California Constitution is deeply flawed and desperately needs revision. The requirement that the budget as well as any tax hikes must be approved by a two-thirds vote in the Legislature ensures legislative gridlock and is a large part of why the state is now in such desperate financial shape. The overused initiative process has led to a host of unfunded, voter-passed programs that distort the state’s spending priorities. Term limits have robbed the Legislature of experienced leaders and legislators.


But is a constitutional convention the best path to a solution? Even if there is a constitutional convention, and even if it does come up with a coherent and meaningful package of proposed changes, it’s uncertain that that package would ever be adopted. There are countless controversial issues that could doom it. For example, if the revised constitution protects a right to marriage equality for gays and lesbians, a significant number of voters will oppose it on that basis alone. But if the new constitution does not protect a right to marriage equality, others will vote against it for that reason. The same impasse could arise over abortion rights, affirmative action or benefits for undocumented immigrants.

Even if the constitutional convention were narrowly limited to issues related to the state’s fiscal problems, this difficulty would not go away. For example, Proposition 13, which limits property taxes, has a greatly distorting effect on the state’s tax structure, and I would certainly argue that it should be repealed or, at least, reformed. But simple politics tells us that a proposal to repeal Proposition 13 would be enormously controversial and could doom any constitutional reform. The same goes for repeal of the two-thirds requirement for passing budgets.

Such controversies are unavoidable. That is why several efforts at charter reform were defeated in Los Angeles before there was finally approval of a new charter in 1999. And in order to ensure passage, the charter that was ultimately proposed had to stay away from some essential reforms, such as increasing the size of the Los Angeles City Council. Even a modest increase from the current 15 council districts was seen as likely to doom the whole proposal.

Moreover, during the charter reform process, there was no consensus on any issue concerning the structure of city government. Then-Mayor Richard Riordan had his views, City Council members had theirs, the city attorney and city controller had theirs, business groups had theirs, unions had theirs, homeowners had theirs, and so on. Many of these stakeholders had the power and resources to defeat any proposed new charter if they chose to.

The result was that everything had to be a careful compromise. But a compromise document can go only so far in providing innovative solutions to serious problems. For instance, an impasse over the role of neighborhood councils was only resolved after we drafted fairly ambiguous provisions that created a weak system.

Rewriting the state Constitution will also take time. First, the voters must approve a constitutional convention at the ballot box, and then the convention’s delegates must be selected. They will need a significant amount of time to study the issues and to begin to draft the new constitution. When and if they finish battling over what their proposal should be, it would need to be approved at the polls. That could take years -- and frankly, the state needs a faster solution.


I have no real objection to a convention. I just don’t believe we can count on it to solve our problems -- and certainly not in a timely fashion. Therefore, even if convention proponents continue to move toward establishing one, action must still be taken now to address California’s most serious problems.

For example, an initiative should be placed on the ballot as quickly as possible to eliminate the two-thirds requirement for passage of the state budget and of new taxes. Only two other states in the country have such an antidemocratic requirement, and it is an enormous obstacle to responsible budgeting. The current crisis hopefully will provide the impetus for passage of this reform. But if such an initiative cannot get approved, there is little reason to believe that a new constitution that includes this change could get approved either.

No one in California can deny the seriousness of the state’s problems or that the California Constitution needs major revision, if not replacement. But it is unrealistic to pin hopes on something that is so difficult and time-consuming to achieve.