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Calif. Budget Crisis Prompts Calls for Constitutional Reform

Fixing the Ungovernment of California
If California is ungovernable, what can we do about it? Overhaul the constitution or tweak it here and there through the initiative process? Common Cause and the League of Women Voters are examining the alternatives, and we talk with Thad Kousser about possibilities.

This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh. You're listening to These Days in San Diego. Governor Schwarzenegger Tuesday signed the budget deal that was cobbled together by the legislature to close the state's $ 26 billion deficit. The budget revision is full of painful cuts but perhaps equally painful was the process that put the deal into place. Since the California budget requires a two-thirds majority vote, much of the anguish of recent budget negotiations has to do with acquiring a handful of minority Republican votes, which means that, in practice, the supermajority requirement allows the minority to rule in the state legislature. The budget stalemates and the gridlock in Sacramento are two big reasons why several political and civic organizations are now calling for a change in the California constitution. With polls showing a growing dissatisfaction among voters with the California legislature, the two-thirds majority rule, the initiative process and election rules, the move towards a constitutional change, even a Constitutional Convention is becoming a serious possibility. My guest to discuss the issue of overhauling the California constitution is Thad Kousser. He is UCSD political science professor and the moderator of an upcoming panel on the question of constitutional change sponsored by California Common Cause. And welcome, Thad.

THAD KOUSSER (Professor of Political Science, University of California at San Diego): Thanks for having me, Maureen.

CAVANAUGH: Now we invite our listeners to join the conversation. Would you like to see the California constitution changed? How would you like it changed? Or is fiddling with the state constitution too big a step to take? Are there other ways to fix California’s problems? Give us a call with your questions or comments, 1-888-895-5727. Thad, you know, even before the legislature began to craft the budget this year, we started hearing from the pundits and the politicians that California is broken, it’s ungovernable, it’s a complete mess. What do you think is wrong?

KOUSSER: Well, I think there are parts of California government that are obviously broken and there are parts that still perform quite well, so our budget process is the biggest trouble area. But, on the other hand, we saw at the same time, on the same day that we were having this disastrous special election where voters, both on the left and on the right, rejected Sacramento’s budget deal in May, we also saw President Obama calling our global warming bill the model for the national approach to probably the biggest public policy challenge of our time so – so and there’s some areas where California government’s still delivering what voters want and producing innovative landmark policy. There’s some areas, like the budget, that are clearly broken. And I think the reason why everyone’s looking at comprehensive systematic change through something like a Constitutional Convention is because trying to fix the budget process will require a lot of changes throughout – that will reverberate throughout California’s governing structure.

CAVANAUGH: Well, I’m glad you started out with that because it’s always good to hear that something’s working in California. But when people point to what is not working, they often point to the two-thirds vote required for either taxation or the budget process. Tell us a little bit about that and why people are dissatisfied with that.

KOUSSER: Well, this is a provision that we’ve had really functionally in California government since the 1930s and it’s become more and more important. Basically, it requires really a bipartisan consensus on the budget because, you know, the minority party’s always held, in recent times at least, a third of the votes and that’s a functional veto on the budget. It’s become a bigger problem as those parties have gotten further and further apart on the ideological spectrum. So, you know, 40 years ago in California when there were a good number of moderate to conservative Democrats and liberal to moderate Republicans, it wasn’t that hard to cobble together a bipartisan consensus on what our state’s spending plan should be. As those two parties have polarized in the legislature, we’ve seen it get very, very difficult. So we see almost every year a budget that’s late and often a budget that doesn’t really reflect what the majority wants but is something that can get those few votes out of the minority party.

CAVANAUGH: Now the requirement for the two-thirds vote is in the California constitution.


CAVANAUGH: So we would have to change the constitution in order to change that two-thirds requirement. Tell us, briefly, some of the ways that we could change the constitution and then we’ll go into each of them a little more deeply.

KOUSSER: Yeah, there are really three ways. The simplest is through a constitutional amendment that can be just done at – with a normal initiative at the ballot box. And we’ll probably see a ballot initiative in the June 2010 election that proposes getting rid of that two-thirds rule and having a budget be passed by either a simple majority or a 55 or 60% majority. So we can do that either – we can do reform issues one by one through the normal constitutional amendment process. We could have a bigger revision process that looks at a package of reforms and fundamentally changes the California government through what’s called the Constitutional Revision Commission. The legislature would set it up. It would be either a blue ribbon or a somehow elected panel that would then come up with ideas and then send them to the voters for final ballot verif – validation. Or we could just turn everything over to a Constitutional Convention that would in some ways start from scratch. We haven’t rewritten our constitution in California since 1879 but a Constitutional Convention would throw open the doors to write a new constitution and then, at the end of the day, the work of that Constitutional Convention would have to go before voters for a majority vote to be passed.

CAVANAUGH: Well, of those three, the one that seemed least likely, the Constitutional Convention, is the one that seems to be talked about the most and I’m wondering if you could tell us a little bit more about how that would work. How would the delegates be chosen? How would we even say that we wanted to have one?

KOUSSER: Well, right now only the legislature can call a Constitutional Convention. Voters can’t do it directly, which is sort of strange for California. We normally think of this as direct democracy taken to the extreme and there are other states where voters are actually even regularly asked every decade or so whether they want to have a Constitutional Convention. But in California, voters aren’t regularly asked to do this. Voters can’t even do it themselves. The legislature would have to call a Constitutional Convention and convene it and fund it. Now there is a bill in the legislature right now to do so but there’s also an effort by a group called the Bay Area Council, which is a business group from the San Francisco Bay area and they’re thinking of pushing two initiatives on the June 2010 ballot. The first would change that provision to allow voters to directly call a Constitutional Convention and take that power out of the legislature’s hands. And, secondly, there would be another initiative that would call that Constitutional Convention and say, you know, over the next six months or so, we want to rewrite the constitution of California.

CAVANAUGH: And I wonder, okay, say that voters do that.

KOUSSER: Umm-hmm.

CAVANAUGH: Say that they approve both of those initiatives that could be on the June 2010 ballot. What happens then? How are delegates selected? How does this process move forward?

KOUSSER: Well, there are a few different ways to do it. The way that most states do Constitutional Conventions and the way that California did it last time in the 1800s, is by electing delegates to a Constitutional Convention. So perhaps each district would elect two or three delegates, people who would make their views on how to fix California clear to voters. Voters, you know, the ones who had popular views would be elected. There’s a new idea. Well, it’s an idea that has historical roots but is new to California that’s being pushed by the Bay Area Council, which is trying to have basically a random draw of delegates, so have it work kind of like jury duty where people who are registered voters are randomly selected and invited to participate in a Constitutional Convention. So it would be ordinary folks who wouldn’t have had to run for election and the idea would be that they don’t owe anyone anything, they didn’t have to gather campaign contributions, and they can sort of start with a blank slate.

CAVANAUGH: Wow, if you think jury duty is confusing… Now, wouldn’t a convention take a very long time though? I’ve seen one timeline of three years.

KOUSSER: Well, I think some conventions – our last one went from 1878 to 1879 but they don’t need to take very long. So one of the models for the Bay Area Council’s approach has been the Citizens Assembly that was done in 2004 in the Canadian province of British Columbia and that was sort of normal folks randomly selected and they met from January through the summer, getting acquainted with the form of government then they worked in the fall deliberating about how to propose changes and by December they had a major proposed change to be put on the ballot in British Columbia. It ended up narrowly failing but they were able to come up with some innovative change proposals within a year’s time.

CAVANAUGH: Now isn’t it a risky business to open up the entire California Constitution for change in a convention? Would that be – Would we be risking something doing that?

KOUSSER: Well, it’s a matter of legal contestation whether, in fact, the type of Constitutional Convention that the Bay Area Council envisions would open up itself to everything. So, you know, as many people who have sort of taken California government classes in high school have seen, the California constitution is like 165 pages. It’s this giant document that covers, really, a lot of policy areas rather than just government. It has an entire Article on usury, an entire Article on motor vehicle fees. So it has all these policy areas. The Bay Area Council wants to limit the Constitutional Convention to just focusing on California government, the structure of government, the way our elective bodies work. And also to say that in initial drafts, they’ve come up with this idea that Prop 13 should be off limits, so it’s clear that a call of a Constitutional Convention can limit it. What’s not clear is when that actual Constitutional Convention gets convened, whether they can unlimit themselves.


KOUSSER: So in some states they’re – you’ve seen this idea of a runaway convention where a limited convention is called and then that’s – and that convention says, well, we want to take a look at some of these pressing policy issues, things like illegal immigration, things like gay marriage, things that are important policy issues to many Californians but also something that could really get a Constitutional Convention hung up and either deadlock or have them come up with a proposed constitution that fails at the ballot box because of the policy rather than the governmental process provisions that it contains.

CAVANAUGH: Now if there were a commission appointed by the legislature to change aspects of the California constitution, would that tend to limit the scope of the change a little bit more?

KOUSSER: Well, you know, this is something that we’ve seen done both successfully and unsuccessfully in California’s recent history. So in the 1960s, there was a Constitutional Revision Commission that came up with a lot of successful proposals that then have to go through the legislature and get a two-thirds vote in each house so, again, there’s this idea that their proposals would have to have a bipartisan consensus and then when they go before voters that they’d be more likely to be successful. So, for instance, one of the propositions that came out of that, this thing that modernized our legislature, comes onto the ballot in 1966, is endorsed by both Pat Brown, the Democratic gubernatorial nominee, and Ronald Reagan, the Republican nominee. It passes by a three-to-one margin and it came up with these consensus issues. In the 1990s, our last crisis, when everyone was saying California was broken and ungovernable, we had a Constitutional Revision Commission. The ideas that they came up with all got stalled in the legislature and never went before voters. So I think the worry with that process is not that it will run away into all these different directions but that the legislature will not be able to agree with the bipartisan consensus on how to change the process.

CAVANAUGH: You know, a lot of people are saying that California doesn’t have the time either to wait for a Constitutional Convention or a Congressional Constitutional Revision, since we can amend our constitution and maybe change this two-thirds majority vote for a budget simply by initiative, they say that’s the way we should do it.

KOUSSER: Umm-hmm. Well, I think California voters will probably have that option in June. I think some group, probably a public employee or teachers union, may back a ballot initiative to do that. Here’s the problem with the one-by-one approach to constitutional reform that has to happen to the amendment – the initiative process where there’s a single subject really, you can only address one issue. The problem is, you know, we’ve tried getting rid of the two-thirds rule and it failed a few years ago on the ballot because it wasn’t balanced with some protection for taxpayers. So there’s this idea that getting rid of the two-thirds rule might only work if it’s combined with a grand bargain, say a really strong rainy day provision, something that’ll make California voters say we want the majority to rule on the budget but we also want some limit on the scale and the growth of government once functionally Democrats are in charge of the budget. That grand bargain can’t be accomplished through the one-by-one initiative process. It can only happen through the constitutional revision or Constitutional Convention process.

CAVANAUGH: And some people say we have the third largest constitution in the world because it is so easy to change through the initiative process.

KOUSSER: Yes, and there’s certainly a lot of – if you ask voters do you think the initiative process works perfectly? There’s a resounding no. Everybody has their own problem with the initiative process and there’re always moves afoot to change the initiative process. But the problem is you can get voters to agree that there’s a problem. You can’t get voters to agree on a particular – on many particular solutions. So a lot of the ideas to change the initiative process just don’t have popular support. We’ll see another good hard look at these ideas and say, look, if the initiative promises either tax cuts or more spending, that initiative has to say where the money comes from, you know, so it will sort of pay for itself. That’s one of the proposals that’s being thrown on the table but I’m not sure that any initiative reform would – will happen through the one-by-one amendment process either.

CAVANAUGH: You know, my last question to you, Thad, is that, you know, there is the concept that if people don’t like the way things are run in Sacramento, they can always vote out the incumbents…

KOUSSER: Umm-hmm.

CAVANAUGH: …change the governor. They can even give the ruling party a two-thirds majority so they don’t have to worry about the minority holding things up. And I’m wondering, why we would need this additional step of actually changing the constitution in your opinion?

KOUSSER: Well, you know, Californians aren’t of one mind so the more than a third of – of the districts that elect Republican legislators love what those Republican legislators are doing. They’re very happy about this budget that generally, you know, solved the big budget deficit without raising taxes. So politicians in some districts are doing a great job for voters and those voters are happy with them and there’s not a giant consensus in the way California government should go so that the reason that we have deadlock in California is because we all disagree. We all have different visions for California government. So with that two-thirds rule, you’re never going to have California government simply shifting to an overwhelming consensus in favor of one direction or the other.

CAVANAUGH: And Thad Kousser, I just do want to mention that you are going to be taking a fellowship to Stanford to actually study a California constitution and I wonder, have you thought about what steps you’re going to take to study this?

KOUSSER: Sure, we’re actually going to be – Stanford, UC Berkeley, and Cal State Sacramento are actually going to be holding a big joint conference on October 14th in Sacramento, another free and open to the public conference where we’re going to bring in national experts who’ve been involved in other state constitutional conventions, been involved in British Columbia, been involved in some of these legal fights over constitutional conventions to try to bring together all the groups, grassroots and elected officials who are pushing for this and create a, you know, a dialogue between California and other states, between academics and policymakers in California, and see if we can’t – even if we don’t have consensus on the substance of reform, at least get consensus on a good path towards reform that will work for California because I think the biggest danger in this is that we’ll have this moment of reform wasted if we can’t agree on how to move forward. And if we have a failed Constitutional Convention or a failed revision, that would be a big disservice to California.

CAVANAUGH: And just quickly, has there any polling been done on this issue?

KOUSSER: There’ve been polling on individual issues like the two-thirds rule, changing Proposition 13. There hasn’t been polling or anyone’s asked California how do – if you – do you want a Constitutional Convention? If we have one, how do you want to see people put on that delegate (sic)? So we’re actually partnering – those three universities are partnering with a group called Next 10 and the Field Poll put 20 questions on the October Field Poll that’ll ask…


KOUSSER: ...Californians about how they think constitutional reform should happen. And we’ll be releasing the results of those pool – those polls at our convention.

CAVANAUGH: Very interesting. And thank you so much, Thad.

KOUSSER: Thanks for having me.

CAVANAUGH: Thad Kousser, UCSD political science professor, and he will be moderating a discussion called “California’s Constitution: Time for Overhaul?” That’s this Saturday, August first, Mission Valley Library, and it’s sponsored by California Common Cause. And we invite you to post your comments online at You’re listening to These Days on KPBS.