hill country observerThe independent newspaper of eastern New York, southwestern Vermont and the Berkshires


News & Issues October 2017


Constitutionally divided

In N.Y. vote, a chance to fix Albany — or a risk to cherished rights?


coalition of labor unions and other groups has been distributing lawn signs urging a No vote on November’s question of whether to hold a state constitutional convention in New York. Groups supporting a Yes vote say they don’t plan to print lawn signs. Joan K. Lentini photoA coalition of labor unions and other groups has been distributing lawn signs urging a No vote on November’s question of whether to hold a state constitutional convention in New York. Groups supporting a Yes vote say they don’t plan to print lawn signs. Joan K. Lentini photo


Contributing writer

Supporters say a constitutional convention offers a once-in-a-generation chance to fix New York’s famously dysfunctional state government.

But opponents say a convention would be run by the same political class that now rules Albany – and worse, that these politicians would run up a big bill for taxpayers while drafting changes that might take away rights and protections the state constitution now provides.

Voters across the state will decide on Nov. 7 whether to call a constitutional convention. By law, the question must be presented to voters every 20 years. If voters say no, as they did the last time the issue came up in 1997, the next opportunity to call a convention will be in 2037.
Gerald Benjamin, a political science professor at the State University of New York at New Paltz, is among those urging voters to say yes.

Gerald Benjamin SUNY New Paltz professor
“We need fundamental restructuring,” he said.
Benjamin reeled off a list of problems that a constitutional convention could address: corruption in the Legislature, gerrymandered districts, outdated election rules that contribute to low voter turnout, a judicial system that is “the worst organized in the country,” inadequate home rule for municipalities and counties, and too much power for the governor and state attorney general.

Benjamin served as research director for a state commission set up to prepare for a possible constitutional convention in the 1990s – a possibly voters rejected when the issue was last on the ballot in 1997.

If voters say yes this time, they’ll elect delegates to a convention in November 2018, and the convention would begin in April 2019. Any constitutional changes proposed by the convention would be subject to another statewide vote in 2019.

Carl Korn, a spokesman for New York State United Teachers, is among those urging voters to halt that process by saying no this November.

“Everyone knows it will be a very expensive boondoggle that will cost hundreds of millions of dollars,” Korn said. “It’s very, very risky. All our rights as New Yorkers could be at stake.”


Few changes since the 1930s
The constitutional convention is one of three constitution-related proposals that will appear on the back of New Yorkers’ ballots on Nov. 7. The second proposal would amend the state constitution to allow revocation of state pensions for public officials convicted of felonies related to their official duties. The third proposal would allow the state to create a 250-acre land bank to cover small land swaps for municipal projects in the Adirondack Park.

In its current form, the state constitution runs to 20 articles and 45 pages. It was created at a convention in 1894 that essentially rewrote the previous constitution.

A convention in 1938, the last convention that accomplished anything, made a number of amendments, including protections for workers’ rights. A convention in 1967, called by the Legislature, came up with a list of amendments but made the error of submitting all of them to voters as one proposal, which was voted down. Since that last effort 50 years ago, no constitutional conventions have been held in New York.

“This is the longest time without a constitutional convention in the history of the state,” Benjamin said.

The state constitution provides two methods for amending it. One is by a legislatively referred constitutional amendment, also called a single-issue ballot question. In this process, two successive sessions of the Legislature must approve an amendment, which is then submitted to voters. This year’s Proposals 2 and 3 are that kind of amendment.

“That process has worked,” Korn said, citing voter approval in 2013 of an amendment to allow casino gambling.

The other method for amending the constitution is through voter approval of a constitutional convention.

Supporters of a convention say the piecemeal approach of single-issue ballot questions is too slow and cumbersome to address the many structural problems of New York state government. And because the single-issue process is controlled by the Legislature, they argue, it is unlikely ever to produce meaningful proposals to raise ethical standards, curb or halt gerrymandering or make other changes that shake up Albany’s current power structure.

Those supporting a convention include the New York State Bar Association, several good-government groups -- including the state League of Women Voters, Citizens Union and the women’s group Forward March NY – and a variety of academics, lawyers and former state officials.

Opponents, though, warn that at a convention, the scope of potential change to the state constitution would be wide open.

If Proposal 1 passes on Nov. 7, voters in each of the state’s 63 state Senate districts would elect three convention delegates in 2018, with an additional 15 delegates elected statewide.

The 204 delegates would each be paid the same salary as a member of the state Assembly and would have the power to hire staff and set their own rules for the convention process.
The convention, which would begin in April 2019, would have no set time limit -- except that any proposed amendments would have to be presented to voters no sooner than six weeks after the end of the convention and no later than the following general election, in November 2019.


Opponents highlight risks
Many of the groups opposing a constitutional convention say they fear it could endanger important rights that are now enshrined in the state constitution.

The umbrella campaign organization opposing a convention calls itself New Yorkers Against Corruption. Among its largest members are NYSUT and the Civil Service Employees Association, the union that represents 300,000 state and local government employees in New York.

“It’s a broad coalition of well over 100 groups, including groups that have never worked together before,” Korn said. “It’s telling that labor is joined by the National Rifle Association, the right-to-life movement, and the New York State Conservative Party.”

Among the other members of the anti-convention coalition are Planned Parenthood Empire State Acts, the state Republican Party, the Working Families Party, the Council of Churches, the Farm Bureau of New York, some environmental groups and several advocacy groups for gay, lesbian and transgender rights.

As of late September, records compiled by the nonpartisan Ballotpedia site showed convention opponents had raised $635,000 in funds for a No campaign, while groups on the Yes side had collected $389,000.

CSEA’s Web site refers its members to the NYSUT Web to obtain “Vote No” lawn signs, buttons and other campaign paraphernalia.

Groups urging a no vote contend a constitutional convention would likely be dominated by “special interests” that are already influencing a corrupt state government. Opponents also warn that to please wealthy patrons, convention delegates might remove constitutional protections such as workers’ rights to collective bargaining, which were added to the state constitution after the convention of 1938.

“We don’t know who the delegates will be, what they’ll propose, or how much money they’ll spend,” Korn said. “It’s very risky to open the constitution and let special interests rewrite it.”
About 80 percent of the delegates at the 1967 convention were elected state officials who drew delegate salaries in addition to their regular salaries, he said. That convention cost state taxpayers tens of millions of dollars and ultimately produced nothing.

Korn predicted a convention in 2019 could run up a bill of $300 million.
The League of Women Voters, though, estimates the cost would be between $50 million and $108 million. And proponents point out that funds for the convention would have to be appropriated by the state Legislature, which, given that most of its leaders oppose a convention, is unlikely to issue a blank check.

Environmental protections at stake?

Opponents say another constitutional provision that could be vulnerable to change at a convention is Article 14. Adopted at the convention of 1894, the clause protects nearly three million acres of land in the Adirondacks and the Catskills as “forever wild.”

Fears that the forever-wild protection could be watered down or lost are a major factor in the Adirondack Council’s decision to oppose a convention. Environmental Advocates of New York also opposes a convention.

“I can understand the desire to reform state government,” Adirondack Council spokesman John Sheehan said. “But a constitutional convention opens the entire document to revision.”
Advocates of a convention point to the “forever wild” clause as proof that good things can come from a convention. But Sheehan says that view doesn’t quite reflect the history of how the clause was created.

“The idea wasn’t proposed until the convention was half over,” he said. “It was brought up almost as an afterthought.”

He explained that although the governor and Legislature had created the Adirondack Park, they had also repealed a law from 1883 that protected state lands from exploitation. The 1894 convention “took that law and made it part of the constitution so the governor and Legislature couldn’t repeal it,” Sheehan explained.

“Our concern over the convention is also due to current political conditions,” he continued.
A loophole in state campaign finance law allows people to create as many limited liability corporations as they like, and each LLC can contribute up to $64,000 to a candidate, raising the specter of a few wealthy individuals spending huge sums to ensure the election of sympathetic candidates as convention delegates.

“Combined with the Citizens United decision, that puts public and environmental organizations at a distinct disadvantage,” Sheehan said.

The state Senate, which is controlled by Republicans, has proposed legislation several times to abolish the “forever wild” clause.

“We relied on the state Assembly to stop it,” Sheehan said.
Because delegates to the convention would be elected by Senate district, Sheehan predicted Republican-allied business interests would have an edge in the delegate-selection process.
“There’s a lot of accumulated value in the forest’s trees,” he said, adding that “some companies want to see” the forever-wild clause abolished.

Another section of Article 14 gives citizens the right to sue the state if it fails to enforce the “forever wild” clause, Sheehan said.

“This is the only place where the people can compel the government to act,” Sheehan said. “It’s been used many times in the past.”

Proposal 3 on the November ballot would amend Article 14 to allow the state to create a land bank so that towns that need small amounts of protected land to complete necessary public works projects -- a power line right of way or placement of a culvert, for example -- don’t have to keep coming back to the Legislature for single-issue ballot questions.

“We think Proposal 3 shows why we don’t need Proposal 1,” Sheehan said.


Proponents: A path to reform
Although the state constitution as is may be just fine for some groups, others argue there are pressing issues that can only be addressed by a constitutional convention.

The New York State Bar Association calls a convention “the best opportunity to update and modernize New York’s outdated constitution,” especially “reorganizing and streamlining the state’s confusing court system and simplifying the voter registration process.”

The League of Women Voters opposed a constitutional convention in 1967 but supports it now, arguing that voters need some way to circumvent the Legislature to clean up state government.
“What has the Legislature done in the last 20 years about ethics, voting, and court reforms? Nothing,” said Jennifer Wilson, the organization’s programs and policy director. “There have been about 37 federal indictments in the last 10 years in the Legislature.”

Rather than waiting for state government to reform itself, “a constitutional convention would be the better way to go,” she said.

Wilson acknowledged that “in anything, there’s the fear of special interests being involved.”
“But schools and hospitals are special interests too,” she added. “We want to see a lot of perspectives.”

Supporters say a convention could lead to election and political reforms that would boost voter participation, a category in which New York routinely ranks near the bottom. One problem is that the state constitution now mandates a voter registration cut-off 10 days before an election.
“We’d like same-day registration and automatic registration,” Wilson said.

She also suggested that the Joint Commission on Public Ethics “should be in the constitution so the Legislature can’t make regulations to control an agency that should be independent.”


Bypassing the status quo
Under the constitution, the Legislature controls redistricting, which means legislators’ district boundaries have long been drawn to maximize the advantage for incumbents and for the political party that controls each chamber.

“That’s crazy,” Wilson said.
Would a constitutional convention be likely to remove existing rights?
“Not really,” Wilson said. “Every time, we’ve added and strengthened protections.”

Wilson suggested that a 2019 convention could add constitutional provisions for stronger local governance, ethics and campaign finance reform, more protections for the environment and the poor and elderly, and reproductive choice and access to adequate and affordable health care.
Concerns that a convention could be controlled by Albany insiders are valid, Wilson said.
“But voters control who will be delegates,” she added.

Delegate candidates wouldn’t need to belong to a party, but they would need to collect petition signatures to be on the ballot. For the 15 statewide delegate positions, a candidate would need 15,000 signatures or a designation by a state party committee.

For delegates elected by Senate district, candidates would need 1,000 signatures or 5 percent of the voters in the district if the candidate belongs to an established political party. Independent candidates would need 3,000 signatures or the equivalent of 5 percent of votes cast in the district during the last gubernatorial election.

Benjamin acknowledged that there are hazards in a convention.

“You can’t limit discussion,” he said. “Matters could be changed that shouldn’t be changed.”
But he suggested opponents’ fears are overstated.

“The point is that we need a venue away from people who benefit from the status quo,” Benjamin said. “I don’t think protections will be removed. Instead, delegates might write in a right to clean air and water.”

Does Proposal 1 have a chance of passing?
“I see an even chance that it will be approved,” Benjamin said. “The constitutional convention has very powerful opposing interests. The people who embrace democracy are worried about democracy.”

“It’s hard to say,” Wilson said. “The Siena polls show an appetite for this.”
Although “Vote No” lawn signs are proliferating across the region, that doesn’t mean the convention doesn’t have support.

“There are no ‘Yes’ signs,” Wilson said. “We’re not putting money into them. We’re spending money on education instead.”


The entire state constitution can be read online at www.dos.ny.gov/info/constitution. The ballot proposals are at www.elections.ny.gov/proposedamendments.html.

The Committee for a Constitutional Convention’s Web site is www.concon19.org. The anti-convention coalition’s Web site is www.nyagainstcorruption.com. The League of Women Voters has an educational brochure about the convention at www.lwvny.org/programs-studies/concon2017/ConstitutionalConven_brochure.pdf.