CityViews: Constitutional Convention is New York’s Only Opportunity for Change

Are you satisfied living in a state:

1. having a bloated, 50,000 word constitution that is a concatenation of oddities, anachronisms, contradictory provisions and material declared unconstitutional by the U.S. Supreme Court?
2. in which legislative leaders are allowed to accumulate unchecked power absent controls such as term limits or limits on leadership terms?
3. in which a greater number of legislators and state officeholders than in any other state–more than 30 in the past decade–have been convicted, sanctioned or accused of wrongdoing?
4. where bipartisan gerrymandering and the financial support that comes with office frees state legislators from meaningful competition, making it more likely that a legislator will leave office under criminal prosecution, threat of prosecution or death than by being voted out of office?
5. that consistently ranks in the bottom ten for voter turnout, and refuses to implement changes that would encourage greater participation?
6. that makes it difficult if not impossible for citizens unconnected with the mainstream political parties to gain access to the ballot as candidates?
7. with a state judiciary that its former chief judge called the “most un-unified, dis-unified, fragmented, cumbersome, complicated, antiquated trial court system in the United States,” and which costs the state, litigants, businesses and municipalities an unnecessary half-BILLION dollars per year in inefficiencies?
8. in which a lieutenant governor who assumes the governorship has the right to select his or her replacement lieutenant governor free from any legislative or voter consent?
9. having state and local finance policies that are mired in the nineteenth century and bear little resemblance to the realities of modern government financing?
10. in which opaque budget practices and reliance on questionable accounting practices create the illusion of fiscal responsibility but threaten the long-term financial health of the state?
11. in which local governments enjoy little fiscal autonomy over measures having significant local impact and are hampered by unfunded mandates from Albany?
12. with no constitutional right to clean air and clean water?
13. in which the inequality in education funding between the wealthiest and poorest districts ranks among the worst in the nation?

We are not satisfied with these things, and we have no reason to believe any of them will change if left solely in the hands of the state legislature. That is why we believe New York needs a constitutional convention.

Voters this November will have the opportunity (as they do every twenty years) to decide whether the state should convene what would be its tenth constitutional convention. If voters approve the convention, delegates (3 per state senate district and 15 statewide) would be chosen in November 2018. The convention would begin meeting in April 2019. Any changes to the state constitution would have to be submitted to voters for approval, most likely in November 2019.

Throughout New York’s history, constitutional conventions have not only been responsible for the insertion of almost every right—individual or collective—found in the state constitution, they have been far more successful than the state legislature at proposing the kind of structural changes to state government that are so desperately needed today. Why is this? There are important differences between the state legislature and a constitutional convention that make a convention, even in today’s highly politicized environment, more likely to succeed. A constitutional convention:

• is a unicameral body, so there is no need for passage by multiple houses and the attendant reconciliation required between the two houses;

• is called for a specific purpose and goes out of existence when that purpose is accomplished, freeing delegates from the pressures of re-election campaigns;

• does not use a seniority rule for the appointment of chairs and leadership;

• allows judicial, executive, and local government officials to participate jointly in its deliberations;

• limits the power of political leaders and parties. Convention officers do not have the political and legal influence that leaders of the state legislature wield. They cannot bury the proposals of maverick members in committees. Future committee assignments cannot be promised, and no local project can be initiated or delayed;

• lacks an institutional memory. Nearly all of the delegates to a 2019 convention will be new to the game, as the last convention was held 50 years ago;

• proposes only constitutional changes and focuses exclusively on that task unencumbered from the responsibilities that are part of the state legislature’s duties, such as adopting a budget and the day-to-day business of governing;

• has less demanding procedures for constitutional revision than the ones imposed on the state legislature. Constitutional amendments in New York that are initiated by the legislature must pass two separately elected legislatures; a convention requires only single passage by that body;

• contains a mix of (senatorial) district and statewide delegates, combining both local and statewide interests.

The differences between the two deliberative bodies counter the argument that a convention would be a mere extension of the legislature and give a decided advantage to a convention for achieving the type of reform that has so often eluded the legislature.

There has been much misinformation circulated about a constitutional convention. Some believe public employees could lose their pensions in a convention (incorrect—any existing employee’s or retiree’s pension rights vested under state and federal law upon entering the pension system and any change would violate the U.S. Constitution). Some say a convention would be dominated by reactionary forces that would strip rights (highly improbable given that Hillary Clinton won the state last year by more than 22 points; Democrats have enrollment advantages in 49 of the 63 state senate districts; and Republicans have not won a statewide election since 2002).

Some say conventions are do-nothing boondoggles (historically inaccurate, as six out of nine conventions had their work approved in major part, and even the three “unsuccessful” conventions spawned later legislative amendments that may not have resulted (and certainly would not have resulted as quickly) absent the careful study of the issues by the conventions). Some say a convention will cost hundreds of millions of dollars (laughable given that the 1967 convention and preparatory commission spent just over $55 million in today’s dollars—slightly more than the $47 million the state spent refurbishing the capitol building with no impact on the functioning of state government).

The legislature, over the last forty years, has not demonstrated the ability or willingness to solve the problems that have plagued our state, and there is no reason to believe a miraculous transformation will take place in the next twenty. November 2017 represents our opportunity to try another method of reform. Let’s not squander another generation.

Peter J. Galie is Professor Emeritus, Canisius College, Buffalo, New York. Christopher Bopst is Chief Legal and Financial Officer at Sam-Son Logistics, Buffalo, New York. They are co-authors of The New York State Constitution, 2nd ed. (Oxford University Press, 2012) and co-editors, with Gerald Benjamin, of New York’s Broken Constitution: The Governance Crisis and the Path to Renewed Greatness (SUNY Press, 2016).