Image credit: Jeff Hopkins
In 2017, along with voting for mayor, council members, and other elected officials, the voters of New York will be asked to answer “Yes “or “No” to this question: “Shall there be a convention to revise the constitution and amend the same?” Every twenty years, the New York State constitution requires that the voters of the State be given the option to call a constitutional convention for revising and amending the New York State constitution – a generational opportunity to consider the State’s governing document and how well we are governed.
New Yorkers have been reluctant to seize this opportunity. The last referendum was voted down in 1997 by 62 to 38 percent, and no convention has been called since 1967. The last convention to change the constitution took place in 1937. The convention process has been a victim of stalemate, caught between supporters desiring institutional reform and opponents reluctant to risk the weakening of existing protections to their interests. Richard Perez-Pena, writing for the New York Times in 1997, summarized the situation as “It is, ultimately, hope against fear.” Pro-convention voters will not succeed in 2017 in calling for a convention unless they marshal positive reasons sufficient to overcome negative fears that a constitutional convention will do more harm than good.
How It Works
Article 19, Section 2 of the New York State constitution requires a referendum be held, beginning with the 1957 election and once every twenty years thereafter, on whether to call a constitutional convention. The Legislature may by law call for a convention outside of the twenty-year cycle, but once every twenty years the voters get an opportunity to decide. If a convention is called, voters choose delegates at the next general election. Voters elect three delegates from each state Senate district, with an additional fifteen at-large delegates elected statewide. The convention begins on the first Tuesday of April after the election of delegates and, once convened, operates at its own discretion. The convention selects its own officers, determines its own procedural rules, and may take as long as it needs to decide on revisions or amendments to the constitution. The convention submits proposed amendments for approval by statewide referendum at the next general election. The calendar would look like this in the event that a majority of New York State voters in 2017 vote in favor of calling a convention: voters would elect delegates in November 2018, a constitutional convention would convene on the first Tuesday of April 2019, and voters would ratify or reject the proposals made by the convention in November 2019.
The Supporters
Advocates for a convention in 1997, the most recent referendum, came from disinterested institutional actors such as newspapers and academics, with some support from elected officials. The New York Times editorial board strongly endorsed a “Yes” vote on the referendum as part of a needed reform of dysfunctional government. Leading up to the 1997 vote, the Legislature had failed to adopt a budget on time for thirteen years running. Rent regulation laws lapsed for four days after the Legislature failed to reach a renewal agreement before the expiration date. The Times also criticized New York’s bond rating – the second-worst in America at the time – as well as Albany’s “three men in a room” governance where all major decisions come from agreement between the Governor, the Assembly speaker, and the Senate majority leader.
Pro-convention advocates urged a “yes” vote to address the State system for drawing district lines for Senate and Assembly seats. Redistricting, they advocated, should be removed from control of the Legislature and the power to draw district lines be given to an independent outside panel. Under the system then in place, each house of the Legislature laid out districts to protect their members. Institutionalized gerrymandering of districts protected Senate and Assembly members who held de facto lifetime tenure. Other major proposals by pro-convention advocates discussed at the time included a voter initiative or referendum process, the imposition of term limits and penalties for late budgets, and even the replacement of the Assembly and Senate with a unicameral 150-seat Legislature.
Governor Mario Cuomo advocated strongly for a convention, joined by then-interim Dean of Arts & Sciences at SUNY-New Paltz Gerald Benjamin. They argued that a convention was the only way State government could be reorganized effectively. Both Cuomo and Benjamin argued the “shameful spectacle” of Albany’s inaction “should compel us to the conclusion…a convention is overdue.”
The Opposition
Opposition to a constitutional convention was anchored by groups who enjoyed favorable provisions in the constitution, but who feared that a convention could be hijacked by groups seeking to weaken or eliminate those provisions. Environmental groups feared a convention overtaken by development advocates would weaken or repeal Article 14 – the “Forever Wild” clause – which protected the Adirondack and Catskill Parks. Organized labor unions saw the convention process as a danger to constitutional protections for union wages and pensions. Homeless and welfare advocates feared that a convention could weaken Article 17’s mandate that the State and local governments provide homeless and welfare services. Homeless advocates had relied on Article 17 to win the judicial order that New York City must provide housing for all homeless persons who sought shelter.
Opponents also raised the delegate selection process as a reason to oppose a convention. The allocation of delegates would be through Senate districts and those districts, the opponents argued, had been gerrymandered to protect Republican incumbents. Opponents feared that the result would be a convention made up predominantly of Republicans and would not be reflective of the state as a whole. Michael Cardozo, then president of the New York City Bar Association, emphasized the delegate selection process would result in placing “the same people [in the convention] who are not getting the job done [in the Legislature] today.” The League of Women Voters’ legislative director Barbara Bartoletti pointed out that in the 1967 Convention, the Assembly speaker was elected convention chairman and four out of five delegates were party leaders or state and local government officials. Conservative advocacy groups also feared that the party establishment – Democrat and Republican – would use the convention as an opportunity to retrench and further game the system to their benefit. The groups also found objectionable the estimated cost of $50 million for the convention process.
Most elected officials also opposed a convention process. Then-Senate majority leader Joseph Bruno (R-Rensselaer Co.) argued a convention was unnecessary as the Legislature could propose constitutional amendments for voter ratification. While true, the Legislature and the voters have not opted for much change. From 1998 to 2015 the Legislature put forward thirteen proposed amendments on the ballot, eight alone in the last two years, and few of these proposals addressed the structural issues that motivated pro-convention advocates.
In 2005, the Legislature proposed an amendment that would have imposed a contingency budget in the event they failed to pass a budget on time. The voters rejected the proposal. In 2014 the Legislature proposed an amendment which would allow State judges to remain on the bench beyond 70 years of age. That proposal was also voted down.
In 2014 the voters did adopt an amendment proposed by the Legislature to establish a redistricting commission. The commission is not, however, the type of independent districting commission envisioned by the good-government advocates. The new legislative redistricting commission has ten members. Two commission members are each appointed by the Senate president, the Assembly speaker, the minority leaders of each house, and the final two members are collectively appointed by the eight previously-appointed commissioners. The New York Public Interest Research Group and Common Cause called the commission a “false reform” only giving the appearance of legislative independence. The commissioners are handpicked by the Legislature’s leadership and are required to consider the core of presently-gerrymandered districts in future redistricting, which appears to have locked the gerrymandered status quo in place.
The remaining amendments proposed by the Legislature since the 1997 referendum vote dealt with matters like swapping parcels of protected parkland with private landowners, offering civil service credit for disabled veterans, and allowing electronic distribution of bills to legislators to satisfy the constitution’s presentation requirement.
Today
While many things have changed in the last twenty years, more has remained the same. In 2015, New York is riding a streak of five timely-passed budgets, a marked departure from the chronic lateness leading up to the 1997 vote. However the “three men in a room” governance structure remains in place, even after two-thirds of the room – Assembly Speaker Sheldon Silver and Senate Majority Leader Dean Skelos – stepped down following indictment on federal corruption charges.
The fight to renew rent regulation protections went down to the deadline in 2015 just as it did in 1997. The rent fight has been joined by more recent home rule conflicts over mayoral control of schools, funding of the MTA, and implementing a traffic congestion pricing system.
Union opposition to a convention is already organizing. In March 2015 the New York State United Teachers union issued a message to its membership, arguing a convention is “akin to opening Pandora’s box” when it comes to constitutional safeguards of pension benefits, unionization, and free public education. The union encouraged members to mobilize ahead of the 2017 referendum for a voter outreach campaign similar to that which sunk the 1997 referendum.
Public opinion of Albany has not improved: A Marist poll from May 2015 showed 75 percent of New Yorkers believe the Legislature is as corrupt or more than it has been in the past few years. A July 2015 Siena College poll showed 90 percent of New Yorkers felt state corruption was a serious problem and support a constitutional convention by a 69-15 percent margin, a level of support pollster Steven Greenberg described as “[h]uge majorities of voters from every party and region, voters of every age group, gender, race and religion, as well as every ideology and income bracket.” However, the same poll revealed 75 percent of those surveyed have heard nothing about a possible convention.
If the voters found the reasons to call a convention wanting in 1997, why should voters change their mind this time around? Voter awareness of the convention is presently low and so far there is no champion for the convention like the late Mario Cuomo. However, with today’s communications technology, a prominent leader is not as necessary as before. One person or group can communicate a message to millions of New Yorkers instantly and simultaneously at the push of a button.
The core “hope versus fear” dynamic remains, however, although today there may be greater reasons for hope. A driving force behind the “fear” camp in 1997 was the strength of conservative politics nationwide, and the possibility a convention would open the door for amendments that were hostile to unions, the environment, welfare programs, abortion rights, and more. The present political climate, which has yielded in New York State more progressive-friendly legislation on social issues, would give less reason to fear the opinion of the electorate at the time of the final referendum and in the election of delegates.
Simple frustration on part of the electorate could also drive a “Yes” vote. Twenty years have passed since the last time a convention came up for vote, fifty years since the last one was held. Despite protestations that a convention is unnecessary and that the Legislature is capable of amending the constitution without one, public opinion clearly holds that little if anything has changed for the better in the status quo of New York’s governmental dysfunction. Given how long and how hard groups fought for to obtain constitutional protections, any reluctance to expose them to a risk of amendment or repeal is understandable. But as Mike McDermott said in Rounders, “You can’t lose what you don’t put in the middle. But you can’t win much either.” The natural appeal of a convention is the idea of straightening out all problems in one swing and after fifty years of inaction, the idea of “You won’t fix it? Fine, we’ll do it ourselves” could resonate strongly.
Michael Twomey ’14 is a Center for New York City Law Fellow at New York Law School