Amending versus revising the California constitution

As a result of the California Supreme Court removing the Taxpayer Protection Act from the November 2024 General Election ballot, attention has been drawn to the distinction between “amending” and “revising” the state Constitution. What is the difference?

In Legislature v. Weber (Hiltachk, Real Party in Interest), S281977, the California Supreme Court unanimously decided to remove a qualified initiative measure (commonly referred to as the “Taxpayer Protection Act” or “TPA”) from the statewide ballot for November 5, 2024. The state high court’s 7-0 decision was authored by Justice Liu.

The high court explained, that, “after considering the pleadings and briefs filed by the parties and amici curiae as well as the parties’ oral arguments, we conclude that Petitioners have clearly established that the challenged measure would revise the Constitution without complying with the appropriate procedure.” So, while “the changes proposed by the TPA are within the electorate’s prerogative to enact, … because those changes would substantially alter our basic plan of government, the proposal cannot be enacted by initiative.” The Court explained that the voters’ right to enact a TPA-type measure “is instead governed by the procedures for revising our Constitution.”

Obviously, whether a ballot measure is deemed to be an amendment to the constitution or a revision is critical. That is because an amendment by voter initiative is allowed, but a revision is not. A revision can only be made through a constitutional convention or by a ballot measure placed by the Legislature. A convention also requires action by the Legislature. This is pursuant to Article 18 of the California Constitution.

Article XVIII is titled, “Amending and Revising the Constitution.” Section 1, in part, provides: “The Legislature by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution ….” Section 2, in part, reads: “The Legislature by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, may submit at a general election the question whether to call a convention to revise the Constitution….” Finally, Section 3 states: “The electors may amend the Constitution by initiative.”

However, the California Constitution does not provide a definition of either “amending” or “revising.” Instead, a ballot measure is analyzed by the courts and the judicial branch of state government makes a determination. If the courts determine the initiative by the People to be a revision, then it cannot be adopted by the voters.

Prior to the TPA decision, there have been a few instances where the courts have determined that initiative measures constitute an impermissible revision of the constitution (rather than a permissible amendment). For example, in McFadden v. Jordan (1948) 32 Cal.2d 330, the court ruled that the proposed initiative constitutional amendment was “so extensive as to constitute an impermissible revision.” More recently, the court in Raven v. Deukmejian (1990) 52 Cal.3d 336, found that there was a revision to the state Constitution, which the high court said could not be done by voter initiative.

In determining whether a state constitutional provision is an amendment or a revision that may not be validly enacted by initiative, courts examine both the quantitative and qualitative effects of the measure on California’s constitutional scheme. Strauss v. Horton (2009) 46 Cal.4^th 364. Of course, this raises the question of what does the court mean when it requires examination of the “quantitative effect” of a ballot measure? Similarly, what does the court mean when it requires examination of the “qualitative effect” of a ballot measure?

In explaining its decision, the high court initially wrote that it “typically review[s] constitutional challenges to an initiative after an election in order to avoid disrupting the electoral process and the exercise of the franchise. (Brosnahan v. Eu (1982) 31 Cal.3d 1, 4.) But preelection review is proper for challenges that go ‘to the power of the electorate to adopt the proposal in the first instance.’ (Legislature v. Deukmejian (1983) 34 Cal.3d 658, 667.)”

With a preelection challenge on the basis of a revision (rather than an amendment, which is permitted by initiative), the Court said “[o]ur prior decisions have made it clear that to find such a revision, it must necessarily or inevitably appear from the face of the challenged provision that the measure will substantially alter the basic governmental framework set forth in our Constitution. (Legislature v. Eu (1991) 54 Cal.3d 492, 510.)”

According to the Supreme Court in its TPA decision, “the distinction between amendment and revision dates back to the original 1849 Constitution.” And the provisions of the state Constitution show “that the amendment/revision distinction long predates the appearance of the initiative process in California.” The initiative and the other two forms of direct democracy were adopted by voters and added to the state Constitution in 1911.

The first major preelection challenge that resulted in removing a qualified measure from the state ballot on the basis that the voter initiative was an impermissible revision occurred in 1948. “We held in McFadden that a proposed initiative was an impermissible revision because its effect would have been to “substantially alter the purpose and to attain objectives clearly beyond the lines of the Constitution as now cast” rather than working “ ‘within the lines of the original instrument’ ” to achieve “ ‘an improvement or better carry out the purpose for which it was framed.’”

According to the high court, “the numerous past decisions of this court that have addressed this issue all have indicated that the type of measure that may constitute a revision of the California Constitution is one that makes ‘far reaching changes in the nature of our basic governmental plan’.” The Court also wrote, “stated in slightly different terms, that ‘substantially alter[s] the basic governmental framework set forth in our Constitution” is the test for determining whether an initiative is a revision.

Moreover, “when evaluating whether a voter initiative constitutes a valid amendment or invalid revision, we examine the challenged measure in its entirety. (Amador Valley, 22 Cal.3d at p. 221.)” The Court also said that, “while a single provision of an initiative may constitute a revision standing alone (see Raven, 52 Cal.3d at pp. 340–341), a proposed initiative may also be revisionary based on its combined effects.”

The central focus on the Court’s ruling that the TPA was a revision, rather than an amendment, focused on the taxing authority, primarily of the Legislature, but also of local governments. “From the state’s founding, the Legislature has had broad authority to levy taxes…So central is the authority to levy taxes that tax legislation is exempt from referendum.” Ultimately, the high court ruled that “We think it clear that a voter approval requirement for any new state tax measure would constitute a significant ‘interference with the administration of [the Legislature’s] fiscal powers and policies.’ (Geiger, 48 Cal.2d at p. 840.)”

As a result of the inherent taxing authority of the legislative branch of state government, according to the Court, “By requiring the electorate to approve any new tax or any change in the use of any special tax revenue previously approved by the voters, the TPA would preclude the state from raising new revenue or redirecting any existing special tax revenue in light of unforeseen events, until after a statewide election.”

The Court held that requiring any new or higher tax levy to undergo voter approval would significantly alter the existing constitutional balance between direct democracy and representative democracy, “with reverberations throughout the framework of our government.” Therefore, “we conclude that the TPA would substantially transform the process for enacting new statewide tax legislation that has existed since the state’s founding and that this transformation weighs significantly in favor of finding that the TPA would effect a constitutional revision.”

As a result of the California Supreme Court removing the Taxpayer Protection Act from the November 2024 General Election ballot, attention has been drawn to the distinction between “amending” and “revising” the state Constitution. What is the difference?

The second part of the decision dealt with the argument that the TPA shifts power between the executive branch and the legislative branch in three ways. And the Court held that the TPA “would significantly rework the current balance between legislative and executive functions at the state and local level.” The Court said that the TPA’s proponents do not dispute the significance of these changes.

The Court emphasized that, “what we decide here is only whether the changes would substantially alter the current constitutional scheme, in which legislative delegation of power to administrative agencies is permissible, widespread, and fundamental to the operation of government.” And the high court said that shifting the authority to impose these fees or other charges from administrative agencies to the Legislature would materially reshape the nature and volume of the Legislature’s everyday work and its overall function and efficacy in our system of governance.

In addition, the Court found it “significant” that, under the TPA, every nontax government fee or charge would be subject to referendum, including those necessary to fund essential services. “All state and local charges, no matter how essential, would be subject to delays that could be triggered by a small minority of voters in a given jurisdiction.” As a result, “we conclude that the TPA’s requirement that all statewide nontax government charges be legislatively enacted would, like the TPA’s state tax voter-approval requirement, effect a significant change in how our state government raises revenue.”

Fundamentally, the Supreme Court explained that the basic plan of our state government was set forth in the 1879 Constitution, and the state’s voters have the power to modify their government. However, it must be done “through the appropriate procedures.” The Court said that the TPA, “taken as a whole, would accomplish a revision. Whether any individual component of the TPA would constitute a revision standing alone is a question we do not answer here.”

In conclusion, the Court said the TPA would clearly “accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision” of the Constitution. (Amador Valley, 22 Cal.3d at p. 223.) And, “the measure exceeds the scope of the power to amend the Constitution via citizen initiative. (Art. II, § 8, subd. (a).) It is within the people’s prerogative to make these changes, but they must be undertaken in a manner commensurate with their gravity: through the process for revision set forth in article XVIII of the Constitution.”

As a result of the California Supreme Court’s decision on the TPA initiative, we have further guidance regarding the Court’s legal distinction between an “amendment” versus a “revision” of our state Constitution. Essentially, according to the high court, if there are “far reaching changes in the nature of our basic governmental plan,” or because those changes “would substantially alter our basic plan of government, then the initiative has proposed an impermissible revision.