Why New York Needs a Constitutional Convention

May 1, 2017
By Peter J. Galie and Christopher Bopst
Rockefeller Institute of Government President’s Note:

Every 20 years, New Yorkers have the chance to vote on whether to hold a constitutional convention (known as a ConCon). The next vote will be held this November. If the voters approve a convention, delegates will be elected in November 2018, and the convention will open in April 2019. As the vote fast approaches, the Rockefeller Institute will continue to provide New Yorkers with information in various forms: public education sessions, publications, and debates. Please follow on Twitter or sign up on our website for all the latest information. 

Today’s piece by Peter Galie and Christopher Bopst kicks off a series of pieces between pro and anti-ConCon experts. We hope the dialogue provides insight to help inform voters come November.

 

New York needs a state constitutional convention. The state’s most recent convention was held in 1967, and calls for a convention were rejected in 1977 and 1997. We believe a convention is the only way to achieve meaningful and necessary solutions to the state’s systemic problems. This multipart article will address both why we believe a convention is necessary and will attempt to respond to some of the most common arguments against a convention.

Part I: The “Yes” Argument for a Constitutional Convention

As constitutional scholars, we are often asked why we believe a constitutional convention in 2019 is necessary. We respond: “Ask yourself the following questions:

  1. Are you satisfied with the way the state is governed?
  2. Do you think the state is moving in the right direction?
  3. Do you think the legislature will take the steps needed to change the direction of the state?”

We believe the answer to these questions is “no” and has been “no” for the last generation. Twenty years ago, The New York Times noted the state’s problems when urging a “yes” vote on the 1997 convention question:

The system under which the convention would be organized is far from perfect. But we urge a ”yes” vote because in New York politics the chances for reform are so rare, the price of inaction is so great and the status quo is so wretched. Despite New York’s wealth and rich political heritage, its state government is a paralytic wreck. The constitutional convention offers voters a way out.[1]

Those words ring as true today as when written.

Consider that New York:

  1. Continues to shrink in percentage of the U.S.’s total population. In 2014, the state surrendered to Florida the rank of third-largest state in the nation. From 2010 to 2016, the state’s share of the total population of the country dropped from 6.28 percent to 6.11 percent.[2]
  2. Has a persistent culture of corruption. Albany thrives on a pay-to-play culture that has seen: four temporary presidents of the Senate since 2008 charged with (and three convicted of) some form of public corruption; the convictions on corruption charges of one of those temporary presidents, Dean Skelos, and the speaker of the Assembly, Sheldon Silver, within weeks of each other; criminal convictions of 29 sitting or former elected state officials between 2003 and 2016[3]; and current indictments against two of Governor Andrew Cuomo’s top aides.
  3. Has close to a 90 percent incumbency rate for members of the state Assembly and Senate.[4] More legislators leave office under indictment, conviction, retirement, or death than by losing elections! District lines are drawn in ways that not only favor one party or the other, but insulate most incumbents from primary challenges as well. Once people manage to get into office, uncompetitive districts keep them there. Members’ items, campaign funds from state parties, and the incumbency advantage in fundraising all contribute to helping ensure re-election. The NY Public Interest Research Group (NYPIRG) released a study in 2013 showing that there had been 103,805 violations of New York State Campaign Finance Law in the preceding two years.[5] These offenders, often repeat violators, are able to commit these violations with impunity, secure in the knowledge that they will not be challenged or critiqued.
  4. Continues to engage in back-door financing and sleight-of-hand tricks with the state budget in a manner that hides structural deficits and circumvents the constitutional requirement that all general obligation debt be approved at a statewide referendum. Ninety-four percent of all state-funded debt has never been approved by voters![6] Whether one believes that such a statewide referendum requirement remains necessary, the current gap between the constitutional dictates and the state’s practices is unacceptable and needs to be addressed.
  5. Maintains a court system so complex and uncoordinated that it costs the state, litigants, employers, and municipalities over $500 million annually in unnecessary inefficiencies[7] — not to mention the additional inconvenience, time, and frustration for litigants having to work their way through the system.
  6. Perpetuates a local government system that promises home rule for municipalities that cannot afford to exercise home rule because of unfunded mandates.
  7. Has failed to act for the last quarter-century on reforms that might address these problems and is not likely to act on them in the near future.

However, we are not without hope. We have a constitutional provision mandating that the question of calling a convention must be placed on the ballot every 20 years (N.Y. Const., art. XIX, sec. 2), bypassing the need for legislative approval. That year is 2017. Can we afford to wait another 20 years on the slim hope that the legislature will address these problems?

The Legislature Will Not Fix the Problems

Like all states, New York permits constitutional amendments to be submitted to the voters by the legislature. A proposed amendment must be adopted by two consecutively elected legislatures and then approved by the voters at a statewide election (N.Y. Const., art. XIX, sec. 1). Opponents of a convention, including the state comptroller, the speaker of the Assembly, and the majority leader of the Senate, claim that the legislative process works fine and that the legislature will deliver the necessary change. People even cite the significant number of legislative amendments — 222 — approved by voters since the adoption of the state constitution in 1894 as evidence that this process is working.

The number of amendments, however, does not correlate with an effective constitution. Most significantly, the amendments that have been approved during the last 30 years have largely tinkered around the edges. Adding new exceptions to the “forever wild” provision of the forest preserve, increasing preferences in the civil service system for military veterans, and constantly renewing exemptions to the local debt limitations account for a majority of the amendments approved by the voters since 1991. These may have been necessary changes, but they hardly amount to systemic constitutional reform.

Does anybody really believe that a legislature benefitting from the current power structure and anxious to retain that power would adopt, or even seriously consider, institutional reforms such as:

  • term limits;
  • an independent redistricting commission that would end political gerrymandering;
  • public financing of elections;
  • an indirect initiative that would enable voters to require the legislature to vote on policies they would not otherwise bring to a vote;
  • an independent Moreland/Ethics Commission?

These possibilities “scare the daylights” out of members of the legislature because they threaten the legislature’s power, institutional status, and the control that body now exercises over the decision-making process and the electorate. The argument that we do not need a constitutional convention (ConCon) because the legislature will propose measures that will reform the process is fatuous and disingenuous.

What Might a Convention Accomplish?

Below are some reforms a constitutional convention might propose. We are under no illusion a convention will adopt all of these changes, but even if a convention were able to achieve a handful of them, New Yorkers would be well served:

  • Stronger constitutional requirements to educate our youth, take care of our mentally ill, and mandate a commitment to clean air and water.
  • Term limits for members of the legislature or legislative leaders to prevent the accumulation of unchecked power by a small group of individuals.
  • A revised Suffrage Article that encourages voter participation through such devices as same-day registration and no-excuse absentee balloting.
  • A constitutionally created ethics commission with the power to prosecute violations of state ethics laws unencumbered by the need for legislative or gubernatorial approval.
  • Replacement of the “most un-unified, dis-unified, fragmented, cumbersome, complicated, antiquated trial court system in the United States,” according to Chief Judge Judith Kaye[8] with a streamlined state judiciary that could save the state and litigants an estimated $500 million per year currently wasted on inefficiencies.
  • Amendment of the Executive Article to eliminate the prospect of a governor filling a vacancy in the office of lieutenant governor with no approval by the state legislature or the voters.
  • Fiscal autonomy for local governments by limiting unfunded mandates and revising the outdated tax and debt limits imposed on those governments.
  • Reform of the state finance provisions of the constitution that have been in existence since the nineteenth century and have proved ineffective for the finances of a state having a gross domestic product (GDP) that is higher than all but about a dozen countries around the world, which have allowed the state to incur unlimited debt with reckless abandon,
  • Remedying the “fox in the hen house” — the question of legislators and judges serving as delegates to constitutional conventions.
  • Adoption of constitutional-amendment methods that would provide a means to achieve constitutional revision that do not depend on the whim of the legislature.
  • Simplification and modernization of our 50,000-word behemoth of a state constitution and elimination of the thousands of words of obsolete, superseded, and trivial material.

We have the power to control our destiny — to shape the government and policies of this state. Regardless of what happens in Washington, we can adopt reforms that will correct the dysfunctions in government; reduce, if not eliminate, the pay-to-play culture in Albany; and place in our constitution policies and rights protections that reflect New York’s distinct political culture. In an age of uncertainty and turmoil at the national level, we can seize the day. We have much work to do. In November 2017, we can begin that work. Let’s do it!

Notes

[1] “Call a Constitutional Convention,” New York Times, October 28, 1997, http://www.nytimes.com/1997/10/28/opinion/call-a-constitutional-convention.html.
[2] U.S. Census Bureau, “Annual Estimates of the Resident Population for the United States, Regions, States, and Puerto Rico: April 1, 2010 to July 1, 2016,” Last Revised January 18, 2017, https://www.census.gov/data/tables/2016/demo/popest/state-total.html.
[3] Mike McAndrew, “29 New York state officials convicted, 0 ethics reform laws passed in 2016,” Syracuse Post-Standard, May 13, 2016, http://www.syracuse.com/state/index.ssf/2016/05/ethics_reform_in_albany.html.
[4] Linda Casey, “2013 and 2014: Money and Incumbency in State Legislative Races,” FollowTheMoney.org, March 9, 2016, https://www.followthemoney.org/research/institute-reports/2013-and-2014-money-and-incumbency-in-state-legislative-races/. Casey notes that in the 2014 state legislative races, 87 percent of seats were won by incumbents and 97 percent of incumbents won their primary and general elections. Over one-third of the general elections for state legislature in 2014 were uncontested, and New York has frequently landed in the bottom half of the states for overall elective competitiveness as determined by Ballotpedia. See “State legislatures compared by extant of electoral competitiveness in 2016,” Ballotpedia, n.d., https://ballotpedia.org/State_legislatures_compared_by_extent_of_electoral_competitiveness_in_2016(ranking New York 28th out of 44 legislatures for competiveness in the 2016 elections).
[5] Blueprint for Reform: NYPRG’s Recommendations to the Moreland Commission to Investigate Public Corruption, (New York and Albany: NYPIRG, November 2013): 14,http://www.nypirg.org/pubs/goodgov/2013.11.24BlueprinttoMorelandCommission.pdf
[6] Kenneth Bond, “‘Till Debt Do Us Part:’ The Opportunity for New York Finance Law to Enter the Twenty-First Century,” in New York’s Broken Constitution: The Governance Crisis and the Path to Renewed Greatness, ed. Peter J. Galie, Christopher Bopst, and Gerald Benjamin (Albany: SUNY Press, 2016): 193 n.15.
[7] See, e.g., A Court System for the Future: The Promise of Court Restructuring in New York State (Albany: New York State Special Commission on the Future of the New York State Courts, 2007), 96, http://www.nycourts.gov/reports/courtsys-4future_2007.pdf.
[8] Quoted in Ross Sandler, “Judge Kaye’s Vision for Consolidation and Simplification of the Trial Courts,” CityLand, February 12, 2016, http://www.citylandnyc.org/judge-kayes-vision-for-consolidation-and-simplification-of-the-trial-courts/.