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Constitutional Convention: Opening Pandora:

Gov. Arnold Schwarzenegger wants a constitutional convention because he thinks that’s a way to solve all California’s governmental problems in one fell swoop.Business groups like the Bay Area Council also want a convention. So does California Common Cause, the good-government lobby.But this is a terrible idea for a lot of reasons. Nevertheless, interest is so high that a sellout crowd of 400 paid $89 apiece the other day to attend a Sacramento seminar on the possibility. Among them were city council members, county supervisors, and even a few regular citizens.The presumption all around is that California is dysfunctional today, with a two-thirds majority of the Legislature needed to pass either spending or tax bills, gerrymandered political districts and a host of voter-passed amendments to the state constitution that limit how revenues can be raised and spent. The further presumption is it’s impossible today to fix all these things.Wrong. If you want to change or eliminate almost any law, all it takes is a majority vote on a ballot initiative. So anyone who wants to rescind – for just one example – the landmark 1978 Proposition 13, with its landmark tax limits, need only gather enough petition signatures to put that notion on the ballot and then convince 50 percent, plus one, of the voters.It’s the same for government structure, where an initiative 21 years ago made the office of insurance commissioner elective rather than appointed. Schwarzenegger wants his successors to appoint all other statewide officials, like the attorney general and controller, so they could never resist “orders” like he’s so often tried to issue. He could make that change, if he could convince enough voters to go for it. He hasn’t even tried.Rather, he wants a constitutional convention to do it. But there are problems. For one, there may be no limits on what a constitutional convention could do. Yes, the Bay Area Council argues the subject matter could be limited either by a legislative measure setting up the convention (another two-thirds vote required even to put this on the ballot), or by an initiative to convene one. But no one knows for sure that’s true, and this could be the subject of lawsuits for years after any convention’s product was ratified by the voters.If the subject matter were unlimited, everything from abortion rights and gay marriage to property taxes and the dates of elections might be on the table. Along with a host of other subjects no one could predict. And if one or two sections of a new constitution had enough popular emotional appeal, the entire package could pass with little public debate on most of it. Think of the 1996 three-strikes-and-you’re-out law as one example of an emotional vote. Outrage over one murder allowed that one to pass with little concern for its eventual cost of more than $1 billion yearly.This makes the concept of a constitutional convention a Pandora’s box. You never open those unless there’s no alternative.Another problem is that there’s been no such convention in California since 1878, so no one knows who could be a delegate or how they’d be named. The current constitution indicates only they must represent geographic areas of the state in proportion to their population. So selection could be by district. But would that be by current state assembly or senate districts, congressional districts – or by new districts drawn purely for this purpose?Delegates from any area might be chosen at public meetings. They might be called in the same way as jurors. They could be elected or they might be appointed by some mix of current officeholders. However this might work, it’s an open question whether delegates would be truly representative.So a convention could be a delight for people who like to tinker with government structure, but a nightmare for those who treasure civil liberties and protection against the tyranny of the majority when it comes to things like taxation.”The Pandora’s box thing is a valid concern,” says Dan Schnur, director of the Unruh Institute of Politics at USC. “The biggest structural problem would be deciding who participates. If you have 100 members of the Howard Jarvis Taxpayers Assn., you’ll get one set of results. If 100 members of the California Teachers Assn. are the delegates, you’ll get something quite different. How do you decide what is truly representative?”Better not even to confront this question. If you want big change, run a series of initiatives doing the same work a convention could. All the supposed problems listed by the Bay Area Council and other backers can be fixed that way, if the voters go along. That’s already happened with gerrymandering, as a measure passed last year will soon take the process of redrawing state legislative districts away from legislators.The real question here is simple: Why open Pandora’s box when you don’t need to?

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