Coalition of Strange Bedfellows Opposes N.Y. Constitutional Convention Proposal

From its perch above the Hudson River 150 miles north of New York City, Albany, capital of the Empire State, is a place that has launched many a distinguished political career.

From Theodore Roosevelt a century ago, to Nelson Rockefeller 50 years ago to Chuck Schumer and Andrew Cuomo in modern times, the wonderful old capitol building has been a place where men have dreamed of leading roles on the national stage.

But Albany has also been a cesspool of dysfunction and corruption, a place where unsavory deals have been cut to benefit every interest on the political spectrum, from Wall Street to public sector unions.

Two weeks from now, voters have a chance to reconsider the rules that govern their state. On Nov. 7, they will be asked if they wish to approve the convening of a convention to revise the state’s constitution.

The vote is required by the current state constitution, which stipulates that a constitutional convention question be placed on statewide ballots every 20 years. If the measure is approved, voters would then be asked to elect delegates to the convention, which would convene in Albany on April 2, 2019. Revisions to the current constitution would require approval of the New York state electorate in a vote on Nov. 5, 2019. A new constitution would take effect on Jan. 1, 2020.

Competing Interests

Neither statewide candidates nor members of Congress are on the ballot next month, which is confined to elections for the state Senate and Assembly, municipal government positions, local judges and school boards.

The absence of high-profile, highly contested races is expected to depress voter turnout. Nonetheless, the ConCon ballot question has excited many interests and prompted well-funded campaigns on both sides of the issue.

Proponents include venerable good-government groups such as the League of Women Voters of New York State and Citizens Union, as well as the bar associations of New York State and New York City. A prominent Republican, Assembly Minority Leader Brian M. Kolb, is also a supporter.

Kolb has voiced his frustration with the current system for amending the state’s constitution on a piecemeal basis. In a Feb. 5 column in The Bronx Chronicle, he wrote:

“It took seven years for the Legislature to act on a bill that strips convicted public officials of their taxpayer-funded pensions. This is among the most basic, common-sense bills I have come across in my 16 years in the Assembly. But it took seven years for it to move. Albany doesn’t act quickly or decisively enough. But, through a Constitutional Convention, the people can force action that lawmakers are unwilling to take.”

The opposition to the proposed ConCon is truly a coalition of strange bedfellows. It includes the New York State Conservative Party, the New York State AFL-CIO and other union groups, the New York State Rifle and  Pistol Association, several environmental groups and an LGBT organization in Queens. Seven elected officials are listed on BallotPedia’s count of opponents (as opposed to just one, Kolb, among proponents). The most prominent is New York City Mayor Bill de Blasio (who is expected to easily win reelection in November.) During an April 3 press conference, de Blasio said he was against a convention in a “post-Citizens United world” because “it would be dominated by moneyed interests.” He continued:

“If we’re talking about a society that did not allow any money in politics, I could see some good that could come out of a constitutional convention, or if we had a level playing field, yes I do think we might be able to use it to get some election law reform, but in this environment I greatly fear the negatives that could occur and unfettered spending by powerful forces. And I just don’t think it’s worth the risk. And by the way, we should be able to get election reform through the normal legislative process anyway. I’m certainly going to push very hard for that in the legislative session.”

Public sector unions are fearful that a ConCon would attack worker protections including, as the United Federation of Teachers said in a Jan. 5 statement, “the right to unionize and bargain collectively and state requirements regarding pensions and social welfare.” Farmers are fearful that “convention delegates who are unfamiliar with agriculture and rural life would make long-lasting decisions that will negatively affect” them, a spokesman for the New York Farm Bureau told the Albany Times-Union in August. The Committee to Defend Forever Wild is among fund-raising groups registered in opposition. These are among many who fear upending of a status quo that they enjoy.

The opposition coalesced in June to form New Yorkers Against Corruption, and as of late September 146 groups were listed on its website. Ballotpedia’s ConCon website reports that as of Oct. 12, the coalition had raised nearly $1.4 million, mainly from public sector unions. That was nearly twice the $760,000 raised by ConCon supporters.

A summary of the opposition’s concerns was posted in July on the Nelson A. Rockefeller Institute of Government’s website, authored by Institute special assistant David Siracuse.

Covering the Battle

It’s safe to say that New Yorkers are barely aware of the upcoming ConCon vote, but the Albany-based Rockefeller Institute, which is the public policy research arm of the State University of New York, has been working hard to inform those who are interested.

The institute joined forces with the Government Law Center at Albany Law School, the League of Women Voters of New York State, the Siena Research Institute and other partners around the state to enable voters to gain a clearer sense of what a Constitutional Convention could achieve, said director Jim Malatras in an interview.

The institute’s extensive web portal includes sections on the history of state constitutional conventions, a timeline about the potential new ConCon, an explanation of potential issues, a roundup of media coverage, a listing and links to publications, and blogs on ConCon by expert scholars.

New York’s first constitution was adopted in 1777. Since then, nine constitutional conventions have convened, the latest in 1967. The state has adopted four entire constitutions, the last, and current, in 1894. But since 1894, more than 225 amendments have been added to the constitution, resulting in a document of more than 50,000 words.

Peter Galie and Christopher Bopst, authors of several books on the state’s constitution, frame the issues a new ConCon could consider in a section of the website.

They suggest a “house cleaning” that would cut the document’s length by eliminating redundant or obsolete provisions and lend it more coherence.

They list ideas for reforming the legislature—to “fix” the number of Senate seats; create an independent redistricting commission; strictly limit outside income; enact campaign finance reform; and reduce the size of the legislature, currently the fourth largest in the nation.

Eliminating the governor’s pocket veto power and doing away with election of trial judges are also on their list.

And a section on local governments suggests addressing unfunded mandates, re-evaluating use of the property tax as the primary revenue source and consolidating jurisdictions.

Lifting the current prohibition on gambling, denying pensions for public officials convicted of a felony, revising debt financing and budgeting practices, and adding what’s now only a court order requiring standards of a sound basic education are among policies that might be adopted, Galie and Bobst suggest.

(Another website that delves deep on the issues is NYConstitution.org.)

Galie, Bopst and other Rockefeller Institute bloggers have sought to counter claims that public employee rights might be undone by a ConCon. They observe that pension benefits are a matter of contractual obligation, so current employees and retirees are protected. New York state has a long history of support for public unions, they note, and past constitutional conventions “have added, not taken away, rights.” The right to collective bargaining is not guaranteed by the current constitution, but could be added to a new one.

“New York State needs real constitutional reform,” they write. “To hold that reform hostage to a phantom danger to public employees is to deny the good sense and common decency of New Yorkers and do a disservice to the future of our state.”

Richard Brodsky, a former 14-term Assemblyman and now a senior fellow at Demos, wrote a blog post last month in which he argued that “the single most important task of a constitutional convention is the protection and expansion of the rights and liberties of the people. It is an urgent command of justice: It is made more urgent by the recent retreat of the federal government as a defender of such rights. New York has a distinguished history of strong constitutional protections, beyond those in the federal Bill of Rights. The people have repeatedly approved their expansion through constitutional conventions. Now, more needs to be done.”

Brodsky suggests seven expansions, in the fields of religious freedom, equal protection and discrimination, reproductive rights, privacy, education and environmental protection.

Some have argued that delegates to a ConCon would probably be familiar faces—people now serving in the state legislature. Gov. Andrew Cuomo harbors this worry. “You have to find a way where the delegates do not wind up being the same legislators who you are trying to change the rules on,” he told the New York Daily News in  February.  I have not heard a plan that does that. The theory of the constitutional convention is just good people come in and they're the delegates. The way it will work is you'll probably elect assemblymen and senators as delegates. And the unions will probably fund the campaigns. And you may make the situation worse, not better.”

Galie and Bobst demur, citing historical precedent to argue that a convention “will not be the same old same old politics as usual,” and will not be “dominated by political insiders.”

Some have complained about the cost of the convention. But Galie and Bobst have denounced an assertion by ConCon opponents that the convention would cost taxpayers $350 million—calling it a “mistake” that “became an alternative fact.” Best estimates, they say, are that a 2019 convention would cost between $50 million and $75 million.

Election Prospects

It’s hard to imagine a New York election that doesn’t involve at least a few dirty tricks. Indeed, an example of “fake news” came when an anonymous Facebook user posted bogus warnings about the upcoming ballot:

The posting was denounced and debunked in a Rockefeller Institute blog authored by chief of staff Heather Trelia. Writing of the power of social media, she headlines her piece “When Misinformation Spirals Out of Control: The Case of a ‘Rigged’ Constitutional Convention Process in New York State.”

But dirty tricks may well be superfluous since the opposition to ConCon appears so strong. New Yorkers Against Corruption is playing on people’s distrust of government. On the front page of its website is a photograph of a man stuffing cash into his suit and a highly produced video ad depicting cigar smoking pols cutting deals in a boozy back room. A ConCon, the website says, could mean less funding for the public schools and less environmental protection. It could “empower the same politicians who’ve already taken advantage of us.”

The latest Siena College poll in late September had ConCon ahead by a narrow margin, but support has been falling across recent months, and advertising by the opposition coalition is just getting going.

Twenty years ago, the pattern was the same, said Malatras. By raising fears that existing deals many interests have cut over many years, the opposition gains strength. And specific benefits are pitted against a hazier vision of more ethical government.

In 1997, 930,000 voters supported convening a constitutional convention, while 1.6 million were opposed. Another 1.7 million voters left their ballots blank on the issue.

As of last week, opponents had spent about $600,000 of their warchest, roughly 10 times as much as supporters.

If the question does prevail, it won’t be liberal reformers who take it over the finish line but rather voters who once were called the “silent majority” and now are identified with the Trump brand of populist protest against established elites, Malatras suggests. They keep their views to themselves, don’t register in the polls, but can be a powerful force for change.