Guest Essayist: Joerg Knipprath

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The next significant impact on the development of the California constitution came during the Progressive Era of the early 20th century. The Lincoln-Roosevelt Republican movement had seized control, first, of the Republican Party and, then, in the 1910 elections, of the state government. The movement was an upper-middle class, college-educated, young, elitist, technocratic reform movement centered in the legal profession, the press, and, to a lesser extent, the independent entrepreneurial class. These reformers had been excluded from the traditional retail politics of the urban machines with their roots in the working classes, strong partisan identity, and “spoils system” of political patronage. They professed to believe in the people and democracy, but a people led by the right kind of leader whose programs would use government to improve the lot of the masses. The people, in turn, would recognize the wisdom of those programs and voice their approval in the voting booth.

In January, 1911, the Progressives had full control of the legislature and had in the governorship perhaps the most popular politician California has produced, Hiram Johnson. That year, a special election was held to vote on, among other things, 23 measures that required amendment of the state constitution were proposed. All but one were approved by the voters.

Among the most significant and enduring, for better or worse, of those changes are the initiative and referendum procedures. Initiatives are brought by petitions signed by voters to enact statutes or constitutional amendments. For a statutory initiative, voter signatures must number at least 5% of the votes cast in the most recent gubernatorial election. For a constitutional initiative, the signature requirement is 8%. In either case, once on the ballot, the initiative requires majority approval to pass.

A referendum is a decision by voters on an action already taken by the legislature. For a statutory referendum, the same signature requirements exist as for a statutory initiative. A constitutional referendum to amend or revise the constitution is different. The proposed amendment or revision must first be adopted by a two-thirds vote of each chamber of the legislature (27 out of 40 in the state senate; 54 out of 80 in the assembly). Then a majority of voters must approve. The legislature can also call a constitutional convention to revise the constitution, a task that, despite periodic clamor by the press, it has declined to perform. Finally, a “mandatory” referendum is required for bonds to be issued, if the bonds are repaid by taxpayer dollars. The legislature and governor must approve, after which a majority of voters must concur. All told, the California constitution has been amended over 500 times since 1879, with topics from criminal law reform, to term limits, to state pension benefits.

A third device of direct democracy is the recall of public officials. While the number of petition signatures depends on the office, for most state-wide offices, signatures equal to at least 12% of the votes cast for that office in the most recent election are required. If enough signatures are collected, two separate questions are presented to the voters. First, a majority must decide that the targeted official should be recalled. A second question decides who should take the recalled official’s place, if the recall is approved. There is no winnowing out of candidates through a primary election. Whoever gets the most votes, wins. A recent, and at the time rather shocking, demonstration occurred in 2003. Governor Gray Davis, a Democrat, was recalled by 55-45%, and Republican Arnold Schwarzenegger was elected with 49% of the vote over a plethora of other candidates.

Although these structural aspects of the Progressive Era amendments have had the most significant impact, other reforms also changed the nature of California politics. The Progressives’ hostility to political partisanship led to the abolition of straight-ticket voting, the adoption of cross-filing in primary elections (a process by which a politician could run for political office on the ballot of more than one political party), and the increase in officially non-partisan offices. Local elections cannot be contested by political parties. Thus, mayors and city councils are elected in nominally non-partisan elections.

Many academics and other reformers long have lauded this push toward meritocratic, non-partisan government. In a sense, it is faithful to the classic republican ideal of leaders dedicated to the common weal, rather than factional self-interest. But, in reality, evidence now shows that these restrictions tend to dilute voter attention and interest, which, in turn, produces more and more frantic efforts to increase voter participation. California’s latest constitutional contribution has been the introduction of the “jungle primary,” in which all candidates of the various parties for a particular office are placed on the primary election ballot. The top two vote-getters then run against each other in the general election. This was supposed to produce more “moderate” winners, rather than the more ideologically extreme candidates produced if each party had its separate primary. Instead, this process appears to increase voter confusion from the large number of names on the primary ballot, and lessen voter interest and involvement if, as often happens, the two names on general election ballot are members of the same party. This has further stultified the resiliency of political parties, especially the Republicans, in California.

California’s governmental structure differs from the federal system. The legislative branch is composed of two chambers, both elected on the basis of population. The executive branch is a “plural executive.” The governor is elected by popular vote, as is, separately, the lieutenant governor. While the President appoints federal department heads with Senate confirmation, in California many such officials (attorney general, secretary of state, treasurer, etc.) are elected as independent constitutional officers. While most of the governor’s powers are similar to those of the President, the governor also has a line-item veto over budgetary items. If the governor opposes a particular legislative budget item, he can veto it entirely or reduce it to a palatable level. That veto can then be overridden by a two-thirds vote of each house of the legislature.

Judges of the local and appellate courts can be appointed by the governor if a vacancy in the office has occurred. For appellate judges, the governor’s candidate must have been approved by the Commission on Judicial Appointments. There is no participation by the legislature. Once appointed, the chief justice and the six associate justices of the state supreme court serve for 12 years, after which they must submit to a retention election. The voters choose whether or not to retain the justice subject to this plebiscite. While retention is almost a foregone conclusion, in the 1986 general election, Chief Justice Rose Bird and Associate Justices Joseph Grodin and Cruz Reynoso were rejected due to their perceived eagerness to overturn all death penalty verdicts that came before them.

The state’s current constitution, in sum, is quite different from its predecessor. But, then, so are the people of the state. The earlier version followed the path of traditional American constitutional structure, with its basic organization of government and its “natural rights” approach. Today’s constitution is a record of over a century of interest group politics. It has long since ceased to be a constitution of law and become a constitution of policy. It is easy to mock the inclusion in a constitution of an exemption from property tax for “Fruit and nut trees until 4 years after the season in which they were planted in orchard form.” But one must not ignore the bigger issue. What started as a reform to get around a political structure controlled by the bosses of entrenched and organized political parties and clubs by creating a system of direct democracy to appeal to the voters directly, has become the playground of well-funded, unaccountable, politically-connected private pressure groups posing as expert technocrats solving problems. In the guise of the “public interest” are private interests achieved. This is the inevitable result of the Progressives’ Platonic vision of themselves leading the masses designed to follow. It is a fit constitution for a California increasingly divided into a highly-educated, highly-compensated elite; organized interest groups of public employees, environmentalists, and ethnic affiliation; a shrinking middle class, and a mass of workers and unemployed struggling to get by.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Wow.

    Very interesting concepts. As one formally trained in science and math with 37 years of industrial experience I find issues, policies, or processes based or triggered by percentages or thresholds very interesting. Aside from the rather direct method for changing the CA constitution, I found the threshold 5% of the gubernatorial votes cast tot be a odd, really odd threshold. 5% may be an acceptable target. But it should be based on a more stable base such as CA citizens above 18 years of age. Basing it on gubernatorial votes means the threshold can and likely does vary drastically from election to election.

    The other item that left me scratching my head is that both legislative chambers are elected based on population. What’s the point of having two chambers. reminds me of junior buyers who reported to me who would present two suppliers whose pricing was based on exactly the same price formula. Except for providing modestly better security of supply there was no advantage of having two suppliers.

    It appears to me that CA has gone to great lengths to cure perceived ills only to marginally address those ills while exposing the patient to even more infectious diseases. I guess this one more reason I recently met scores of people in Idaho who were recent immigrants from California. It might be entertaining and educational to have a small state experiment with public governance. But its sobering when the most populace state does so.

    Thank you for the education.

    PSD

    Reply

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