The California quagmire

We share the emerging consensus that California is broken. State government is failing its citizens in education, infrastructure, parks and elsewhere. These failures, in turn, cause counties, cities and school districts to slash their own services. Given the Legislature’s chronic inability to deal realistically with the state budget, these failures may worsen. The governor’s recent May revise, pilloried in the May 18 Times’ editorial, “Schwarzenegger’s ‘ugly’ budget,” is another indicator that the state’s problems are escalating.

The consensus breaks down over solutions. We’ve been polling some of the brightest legal and political minds for ideas on quelling the crisis in preparation for a September conference at Loyola Law School in Los Angeles on defining and addressing California’s budgetary and constitutional problems. It is clear that though there are no obvious solutions, a number of issues require immediate attention:

The deficit: Next year, the projected deficit is $20 billion, and future years look no better. We are amazed that California, with all of its wealth (currently, the world’s eighth-largest economy) cannot finance its own government. Structural infirmities such as tax restrictions and the two-thirds requirement for enacting budgets worsen our situation. One partial solution is to allow California’s Legislature, like most states’, to enact budgets by majority vote. But few viable solutions exist for increasing revenues or decreasing spending.

Legislative term limits: In 1990, California voters adopted strict term limits. They may contribute to California’s broken government by disqualifying experienced leaders. California voters, though — most recently in 2008 — have rejected relaxing the limits.

The initiative process: A century ago, railroads controlled government. Voters responded in 1911 by enacting the initiative, referendum and recall. These processes allowed voters to directly amend the California Constitution, enact statutes and unseat officials. A century later, these reforms have been upended. Now, the initiative is used by special interests rather than by ordinary citizens. California Chief Justice Ronald George, among others, has criticized initiatives as creating an incoherent, unwieldy state Constitution.

Redistricting: In 2008, Proposition 11 took the responsibility of Senate and Assembly redistricting from the Legislature and gave it to a citizens’ commission. Will “neutral” redistricting reduce partisanship? The theory — that without gerrymandered districts, candidates will have to appeal to a broader range of voters — is untested in California, since the new districts have yet to be drawn. Already, however, some Californians want to repeal Proposition 11 altogether, while others want to do the opposite and extend it to congressional redistricting.

With our repeated failures to address fundamental problems, many Californians have supported the idea of starting over by calling a constitutional convention. Currently, a convention may be called only upon a two-thirds vote of each legislative house, followed by voter approval. Separately, the Legislature itself, again with a two-thirds vote, may directly propose a new constitution. However, the Legislature is unlikely to achieve such a supermajority on whether the Pacific Ocean is salty, so little chance exists that it would propose a convention or a new constitution.

Recognizing this paralysis, two civic groups submitted initiatives to allow voters to call a constitutional convention without a vote in the Legislature. However, neither group qualified its initiatives for the ballot, and we are as far from a new constitution as we’ve been since adopting the last one in 1879.

Without a convention, reform remains possible via voter-sponsored initiatives on the ballot, but two limitations exist. First, under the single-subject rule, separate reforms must be in separate initiatives. A comprehensive restructuring of government could not appear in a single initiative. Separate initiatives, in turn, pose the risk that some might receive voter approval and some would not, thereby creating an even less coherent state Constitution.

Second, voter-sponsored initiatives appearing on the ballot are limited to constitutional “amendments” and may not be “revisions.” Though California law is imprecise as to differences between amendments and revisions, the California Supreme Court appears to hold that a single constitutional change (such as defining marriage to be only between a man and a woman) is an amendment that may be sponsored by voters. However, a broader restructuring of California government is a revision, which may not be so sponsored.

Restructuring government will be a long, difficult process. The same gridlock that created past problems may also prevent California from revising its Constitution in a sensible, comprehensive way. We do not wish for California’s crisis to broaden and deepen, but nothing else may provide the necessary kick to the political establishment, particularly to the Legislature.

Karl Manheim is a constitutional law professor at Loyola Law School, Los Angeles. John S. Caragozian and Don Warner are adjunct professors at Loyola who teach California legal history and U.S. constitutional history.