Reforming Constitutions

Apparently, talk of reforming Constitutions is much in vogue these days. Britain is considering a proposal to reform the House of Lords to be like the United States Senate. California is all abuzz with whispers of a constitutional convention.

While it’s probably not my place to tell the Brits what to do, I would suggest that the Senate may not make the highest ideal to shoot for if the idea is to make Parliament more democratic. Our Senate was created in an age when it was thought that the various states were separate nations, banded together in an eternal alliance, with the explicit intention of giving equal power to small, and therefore favored, groups of people who had the good luck to live in a tiny state. Someone who lives in, say, Delaware or Wyoming has a tremendously greater ability to influence the policies pursued by his Senators than I do here in California. In Wyoming, about 250,000 people voted for Senator in 2008; in California’s last senate election in 2006, nearly 9,000,000 votes were cast. That means a voter in Wyoming has thirty-six times the power in the ballot box than I do, and frankly I think that’s not very fair to me. The idea of elected Lords seems a little odd, and the UK seems to be doing reasonably well with their effectively unicameral government (even if their PMs have a tendency to be a little bit lackluster).

I have a few ideas for California, though.

We have too many statewide officers with narrow focuses. Why do we directly elect a state Controller and a state Treasurer? They do different things but there is no real reason to not unify their functions. For that matter, why is the Board of Equalization’s function not subsumed into the Legislature? Granted, I don’t have a great deal of love for the Legislature, but in theory that is where taxing power should reside. Also, the Lieutenant Governor is about useless. Most of what the Secretary of State does is civil-service stuff except for writing descriptions of ballot measures.

So here’s one idea — let’s put taxing authority back in the hands of the Legislature, and put government in the hands of the Governor. Only two statewide executive officers — the Governor and the Attorney General. Fiscal control, administration of elections, the Department of Insurance, and all that other stuff should be under the control of the Governor. If there is a vacancy in the Governor’s office, then the AG can become the Governor and call a special election to fill the now-vacant AG’s office.

As for that Legislature — I wish I could figure out a nifty, clean system for creating more competitive seats, so as to make more legislators functionally responsible to their constituents. But I haven’t yet. One way might be to rely on county lines rather than arbitrary districts, but that could lead to the unequal representation problem that I complain about in the U.S. Senate. In terms of population, Los Angeles County is huge, Del Norte County is tiny; voters there should have the same ability to influence things as me, so that means either scrapping the counties or using legislative districts.

One idea that other states have used in the past is at-large representation. We could have all our legislators elected statewide in a massive jungle election, with the top eighty vote-getters for Assembly winning. But I suspect this would produce less responsiveness to voters rather than more. So here’s a hybrid idea — break the state down into, let’s say, twenty localized districts, and then each district elects four Assembly members on an at-large basis every two years, with the top four vote-getters in each district serving; each of these districts also elects two Senators, staggered so that in each two-year cycle the plurality winner of the Senate election gets to serve.

As longtime Readers know, I’m not a fan of a democratically-elected judiciary. A judge who must conform to democratic pressure to hold on to her job faces powerful incentives to periodically deviate from the law, which sometimes compels unpopular results in individual cases. Judges are for the most part immunized from that problem by virtue of their anonymity, but it shouldn’t be a factor at all. I favor appointment by the Governor with the Legislature exercising a “reverse veto” — there should be a “hammock period” between the appointment and the time the judge is sworn and seated, and during that period the Legislature should have to exercise its initiative to take a closer look at an appointee. From there, the appointed judge should serve, barring a felony conviction, display of moral turpitude, or serious breach of judicial ethics, for a single, lengthy term (fifteen years maybe?), and then have to either seek re-appointment or move back into practice. Retired judges tend to do very well for themselves in practice, so don’t cry for them.

Finally, I think it is too easy for the voters to amend the Constitution at the ballot box. I like the idea of initiative statutes, but to amend the Constitution should require a super-majority. And right now there is no definition at all for what a Constitutional convention is; that needs to be explicated for future generations so they have a procedure to use if they ever need to resort to a constitutional convention.

These are systemic, not policy, suggestions. The result of my ideas, I hope, would be to increase the power of the Governor and to create more competitive elections in the Legislature. I think there is a possibility that my idea for legislative reform might produce stronger party machinery, which may not necessarily be a bad thing in the abstract. I’d hope that my ideas will be evaluated on a longer-term basis than “would it favor Republicans or Democrats?” The idea is to set up a superstructure of the state government that will produce good policy and reflect the popular will.

Perhaps those two objectives are incompatible, but that’s a discussion for another day.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

One Comment

  1. You might want to rethink this statement, "That means a voter in Wyoming has thirty-six times the power in the ballot box than I do"If the senate race comes down to one vote in either state, then every vote in each state is equally powerful. Maybe you could argue that statistically, it is more likely for the smaller state to end up in a 1-vote situation. But really it's horribly unlikely in each small or large states. Now, if each state had the same # of electoral votes in the presidential election, then your assertion might be correct when we vote for the POTUS.

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