HRC Blog

Sacramento State University professors Edward L. Lascher Jr. and Tim Hodson and UC Davis School of Law professor Floyd F. Feeney draw upon the experience of Prop 8 to argue in an LA Times op-ed today that the process to amend California's state constitution is far too simple:

Constitutions are supposed to be fundamental documents. Because they outline basic, enduring principles, change and modification should be rare. Understanding this, the nation's founders didn't make it easy to change the U.S. Constitution; they required amendments to gain approval by two-thirds of the Congress and three-fourths of the states. Other entities great and small often follow this basic principle. The National Football League requires three out of every four club owners to approve any change in its constitution; Major League Baseball, a two-thirds vote to change its rules. Even changes in the UCLA Academic Senate bylaws require approval by a two-thirds vote. By comparison, California's initiative amendment process is simple. To get one on the ballot, you have to gather signatures on petitions -- the number required is 8% of the votes cast for all candidates in the last gubernatorial race. There are businesses that will meet this requirement for a fee. It's a little higher hurdle than getting a regular statute on the ballot by initiative (that requires fewer signatures, 5% of the votes cast for all candidates in the last gubernatorial election). Legislators also can send constitutional amendments to the electorate to ratify, but such measures must first win the votes of two-thirds of the Assembly and the state Senate. (If you've watched the budget battles in Sacramento, you know how hard it can be to get two-thirds of the state's politicians to agree on anything.) In either case, once a proposed amendment is on the ballot, it requires only a mere majority -- 50% plus one of those voting -- to change even the most sacred provisions in the state's core document. That's the way it works even if the ballot is crowded with items and many choose not to vote on the initiative amendment. More important, it's the case even if the vote is cast in a primary or other off-year election, when the fewest people come to the polls. Not surprisingly, the California Constitution is a bloated mishmash by comparison with the hard-to-amend federal document. Instead of a transparent constitution that citizens can understand and use, California has obfuscation, clutter and dysfunction. Eight times the length of the U.S. Constitution, it is more about legal technicalities than principles; an embarrassment for an otherwise cutting-edge state. ...Groups interested in fiscal policy have been particularly quick to seek initiative amendments. The result is that the state Constitution is loaded with rules and limits governing money matters that cannot be easily changed. Some of these added provisions are no doubt useful and appropriate, but the overall effect, as the Constitutional Revision Commission suggested more than a decade ago, is to enshrine the status quo and reduce accountability. Initiative amendments did not create the state's current fiscal crisis, but they greatly complicate the task of finding a solution.

It was just announced that the California Supreme Court is scheduled to hear oral arguments in cases contending the legality of Prop 8 on March 5.  The authors of this editorial certainly make a strong case for why the California constitutional amendment process is flawed and why it's dangerous that amendments only require a simple majority vote to become law.