There Should Be A New York State Constitional Convention

Law,New York City,Politics — Zac Townsend @ November 4, 2009 10:18 am

Yesterday I got excited about writing about the need for a New York State Constitutional Convention. I had remembered that there was a lot of discussion about it last summer, but I thought that not enough people were 1) still talking about it or 2) had written much about despite the sentiment.

So this is what I wrote, nothing brilliant but a start:

New York State government is dysfunctional. This summer's state Senate-Lieutenant Governor crisis was a vivid reminder of the disarray; but one that shouldn't divert attention from the fact that the New York State assembly has passed one budget on time in the last 29 years, that the state has a comptroller elected by the legislature from its own membership, or that neither house will consider, let alone pass, a wide range of necessary and popular conflict of interest and good government measures.

We propose a state constitutional convention in a similar manner to those in 1938 and 1967, with one notable exception, no one who has held state or municipal office in that last five years should be eligible for election as a delegate. There are plenty of civic minded, competent individuals in this state who want to see it's government function and who are not as whetted to protecting their own power bases.

[Specific problems with the current constitution]

The Constitutional Convention of 1967, where Anthony Travia, sitting Speaker of the Assembly, served as Convention President, saw its constitution rejected in popular referendum. Two primary objections to that constitution was the gradual transfer of the administration and cost of welfare programs to state government and the repeal of prohibition state aid to church-related schools, both of which were seen as adding to the legislatures budget authority and indebtedness.

That convention saw many worthy proposals including a vast simplification of the Constitution, a more thorough and specific Bill of Rights, a independent committee to handle legislative redistricting, authorization of local economic and community development, and sensible improvements to the funding of judiciary.

We would endorse many of these changes in principle, however, a more thorough and comprehensive review of the state government's structure--including separation of powers and the vast state authority system--is necessary. Such a convention is only possible if the current players in state government are prevented from controlling and shaping the review.

Then I saw this op-ed in the WSJ which basically says almost everything I had intended to say:

New York Needs a Constitutional Convention
It's obvious Albany can't clean up its own mess.

By GERALD BENJAMIN and MARIO M. CUOMO

For the past month, the New York State Senate has stopped working entirely. The Senate is not dysfunctional -- it is nonfunctional. The problem is that neither the institution nor its members are accountable to "We, the people." Instead members concern themselves with personal and partisan agendas. More and more New Yorkers are asking: What can we do?

Let's recall a similar question Thomas Jefferson asked in a 1787 letter to William Smith: "[W]hat country can preserve its liberties, if their rulers are not warned from time to time that their people preserve the spirit of resistance?" We in New York can act on Jefferson's warning. We can demand a constitutional convention.

There are two ways to amend the New York constitution. First, state legislators may identify problems with the political system and propose changes to the people. Second, if politicians benefit from the system's imperfections (as now) and are unlikely to change it, the constitution provides that every 20 years the people can propose necessary revisions. This is where a convention comes in.

Our next chance to have one will be in 2017. That date is frustratingly far off given the spectacle in Albany. But it is within the legislature's power to gain back an iota of respect. It should admit its failure and give the voters the chance to protect themselves against further governmental breakdown.

Sooner or later the Senate will find a way to organize itself. When that time comes it can, with the Assembly, give the public the chance to vote "yes" on the convention by placing this question on the ballot: "Shall there be a convention to revise the constitution and amend it?" This is exactly what the legislature should do this year.

A constitutional convention is a peoples' meeting to design or redesign the peoples' government. The legislature has traditionally not favored calling such a body to life. It feared that a convention might take steps to diminish the legislature's institutional power or incumbents' chances of re-election.

Others with particular interests to protect have also been skeptical. For example, environmentalists worry -- needlessly, we think -- about a convention altering the present constitution's commitment to keeping our parks in the Adirondacks and Catskills "forever wild."

This is short-sighted. Environmentalists might make gains at a convention by convincing us to constitutionalize positive rights to clean air and clean water.

Those eager to avoid a constitutional convention also point to some issues involving the process. For example, the state constitution provides that if a convention is called, three delegates from each state Senate district and 15 at-large delegates must be elected -- creating multi-member districts. It also says that each delegate must be compensated by the same amount as a member of the state legislature.

Because Senate districts are presently gerrymandered to benefit Republicans, this provision providing for their use is thought to have a partisan bias. Moreover, the federal Voting Rights Act in general makes the use of multi-member districts suspect for historically racial reasons. Also, legislators or others already in state government could be elected to serve as convention delegates and get paid for their work. The second provision has in the past resulted in unfortunate "double dipping."

These concerns are exaggerated. Political change has already addressed one of them: Despite gerrymandering, a Democratic majority was elected in current Senate districts.

The other concerns may be addressed as well. The legislature can pass laws to prevent double dipping and assure that multi-member district elections are found acceptable under the Voting Rights Act. For example, in an alternative voting system, each voter would vote for one candidate in the district, not three. In fact, some of these bills are in the hopper right now.

Constitutional change through a convention would require popular votes on three election days. There needs to be a vote to authorize the convention, then to elect delegates, and finally to accept the convention's work. The process is deliberate and allows for accountability. If the public does not like the result of the convention's work, it can reject it, as it did in 1967.

It all comes back to the state legislature. Albany can show that it is genuinely interested in considering reform by putting the convention question on the ballot. Alternately, it can ignore calls for change. This, of course, would further reinforce the cynicism of New Yorkers and push them further away from public life -- and from democracy. If the legislature wants to avoid this fate, which is of its own doing, then it should take up the calls for reform.

Mr. Benjamin is a professor of political science at State University of New York, New Paltz. Mr. Cuomo is a former governor of New York.

I would, as mentioned above, go a step further than Cuomo and Benjamin and take steps to prevent legislatures from serving as delegates at all. It is clear that if Sheldon Silver chaired the Constitutional Convention than little would change-at least for the better.

I also learned a good bit about the 1967 constitutional convention, which is fascinating. Many people think it failed because the convention put the constitutional to the electorate as an all or nothing proposition, so they had to take the good with the bad, but I'm not sure how else you'd write a new constitution for a state. A good brief on the 1967 convention can be found here (PDF).