A Constitutional Convention – A Risk NOT Worth Taking

Ron Deutsch, Fiscal Policy Institute

The New York Constitution articulates the legal rights of New Yorkers, and in many vital areas, provides our residents more protections than the U.S. Constitution. A Constitutional Convention is an expensive, complicated and potentially dangerous undertaking that is unnecessary because we already have a more rigorous and more democratic process by which the voters can adopt or reject individual amendments to the State Constitution on their individual merits rather than being presented with the kinds of omnibus “mixed bag” packages that were advanced by virtually all of New York’s past constitutional conventions.

On this November’s general election ballot, for example, two specific amendments will be before the voters of the state for their approval or disapproval.  One of these amendments would allow judges to reduce or revoke the pension of a public official convicted of a felony related to his or her official duties, thus also serving to refute the claim of convention advocates that the state legislature is unable to police itself.

A Constitutional Convention, on the other hand, would allow for a complete rewriting of the entire constitution putting crucial rights and protections at risk and offering the voters “packages” that combine positive and negative proposals. For example, New York’s 1967 Convention offered property taxpayers the chance to vote for the state takeover of the local costs of Medicaid. However, in order to achieve that change they would also have had to accept the gutting of the mandate to provide aid to the needy, the elimination of the requirement for voter approval of state bond issues and the elimination of the Blaine Amendment and many other proposals –some attractive and some unattractive to particular voters. Constitutional Conventions, by their very nature, have always proposed too many changes for each change to be voted on individually — and they likely always will.

For virtually all New Yorkers, there is simply more to lose than to gain by holding a Constitutional Convention. New York’s voters should not be put in a position of having to approve decreases in some protections in order to gain increases in some others – even if, on some philosopher king’s scale, more rights and protections were gained than were lost.  Amending the state constitution should not be a game of give and take; and that’s why we oppose a Constitutional Convention.

While the idea of a Constitutional Convention might sound great in the abstract, the process for who gets chosen to take part in the convention gives an overwhelming advantage to those with either established name recognition or access to lots of money. In this era of Citizens United, we know that money influences politics and that some hedge fund managers and other billionaires have extreme conservative views and are willing to spends endless amounts of money to push their ideological agenda.

Quite simply, no New York State Constitutional Convention has ever been a “people’s convention” and one established this year will not be a “people’s convention” either despite some of the claims to the contrary.

The delegate selection process basically ensures that “average” citizens will not get a seat at the table. Three delegates would be elected from each of the state’s 63 heavily gerrymandered Senate districts and 15 at large delegates would be elected from the state as a whole. Just to get on the ballot for one of the Senate District seats, as an independent, will officially take up to 3,000 signatures of registered voters who live in that Senate district but in reality potential candidates will need to collect far more signatures in order to ensure that they will survive challenges to the validity of their petition signatures. At large delegates are required to collect 15,000 signatures.

Elected officials, past and present, have a significant advantage in getting elected because of name recognition, but also because the numbers of signatures required for political party nominations is smaller than is required for independent nominations and these individuals have the assistance of their party’s political party organizations in obtaining the necessary signatures. They also have incentive to do so. Convention delegates would be paid the same amount as state legislators, which means that current legislators elected as delegates would double their pay and benefits in 2019 – from the current level of $79,500 to at least $159,000.

What’s At Risk?

We all know the laws of New York State can stand improvement.  But is a Constitutional Convention the best path to reform?  Can anyone guarantee that powerful political interests will protect our most fundamental and enlightened legal principles and protection?  Are we sure that even the best intentions won’t have harmful unintended consequences?

Some issues of concern:

 Public Education – A system of “free common schools, where all the children of this state may be educated,” is protected in our constitution. Advocates of religious and private education are constantly pushing for state taxpayers to pay for schools whose primary purpose is religious, not secular, instruction.  They call for direct appropriations to churches and yeshivas, insidious and indirect funding such as school vouchers, and allowing the wealthy to pay taxes directly to religious institutions.  Our Constitution’s Blaine amendment acts as a check on tax dollars for religious instruction, but it will be under direct attack in a Convention (as it was during the last convention).

 Affordable Housing – Finding safe affordable housing can be a challenge, fortunately, Article XVIII, Section 1 of the state constitution protects rental housing for people with low incomes. A Constitutional Convention could restrict access to affordable housing and could also potentially threaten rent control laws in New York State. There are approximately 35 states that prohibit local municipalities from implementing rent control laws, which if implemented in New York, would create an affordable housing crisis even greater than the one we have now. Article XVII also protects the right to shelter for all New Yorkers.

 Immigrant Protection – New York State, a self-declared sanctuary for immigrants, uses rigorous standards when assessing whether or not a law is discriminatory. This higher standard is critical as our federal government increases the detention and deportation of law-abiding undocumented immigrants. The most recent federal action rescinding DACA, the federal program that protected more than 800,000 young, undocumented immigrants from deportation and allowed them to work legally in the United States, shows the need for this additional protection.

 Care for the Needy– Article XVII of the state constitution requires New York to care for those in need: “The aid, care and support of the needy are public concerns and shall be provided by the state….” Given the federal push to dismantle programs and services for our poorest citizens, New Yorkers cannot afford to put this provision at risk. Article XVII has been effectively used in numerous court challenges to ensure that the needs of New York’s most vulnerable citizens are met, including immigrants and others excluded from the federal safety net.

 Retirement Benefits – The state constitution protects public pensions from being “diminished or impaired.” This means that people who have worked for years providing vital public services can be confident their pension will be there when they need it. Without this constitutional protection, state and local pension funds could be raided like a piggybank to pay for other obligations.

 Worker Rights – New York’s constitution guards against worker exploitation by requiring workers be paid the prevailing wage. The right to organize and bargain collectively is also incorporated in the state constitution. Without these protections, New York could quickly go the way of a so-called “right to work” state, which would dismantle labor protections and send workers on a race to the bottom for wages and benefits.

 Environment – The Adirondacks, Catskills, and surrounding forests, are a natural gift that should be preserved for future generations. Fortunately, our state constitution mandates that these lands will remain “forever wild,” and free from commercial development. If these lands become a bargaining chip in a Constitutional Convention free-for-all, they could be sold off to real estate developers and industrialists. Even though hydraulic fracturing was essentially banned in 2014, forced fracking could again be up for debate at a Constitutional Convention.

 Reproductive Rights – Our state constitution does not currently contain any restrictions on the right to access abortion or contraceptives. The recent change in composition of the U.S. Supreme Court leaves the legal right to reproductive choice hanging in the balance. If conservatives add restrictions through a Constitutional Convention and we lose a decision in the high court, women in New York could be left without the legal right to make fundamental decisions about their own bodies.

 LGBT Rights – New York is a leader in protecting and fighting for the rights of

lesbian, gay, bisexual and transgender people. The Sexual Orientation Non-Discrimination Act, made it unlawful in 2003 for New Yorkers to be discriminated against in employment, housing, credit, education and public accommodations because of their actual or perceived sexual orientation. The Marriage Equality Act of 2011 gave same-sex couples the right to marry in New York state and providing them the same rights, responsibilities, and benefits under state and local law as opposite-sex couples. But without the foundation of equal protection, enshrined in the Bill of Rights of our state constitution, these gains could be eliminated or eroded.

Gun Control – The NY SAFE Act stops criminals and the dangerously mentally ill from buying a gun by requiring universal background checks on gun purchases; increases penalties for people who use illegal guns; mandates life in prison without parole for anyone who murders a first responder; and imposes the toughest assault weapons ban in the country. Opponents of this law could reverse this progress through a Constitutional Convention and allow for the sale of assault weapons and open carry of guns.

 Reduce Taxes on Billionaires –Reclaim NY, an organization funded by Hedge Fund billionaire Robert Mercer and the Koch Brothers and founded by former Trump advisor Steve Bannon, is already working to reduce taxes on the wealthy. A Constitutional Convention gives groups like these another opportunity to put Wall Street and corporate interests ahead of those of ordinary New Yorkers and to spend unlimited amounts of money to push their self-serving agenda.  Reclaim NY, in a recent Newsday article, has already indicated they will be “more of a presence” should there be a Constitutional Convention.

 2% State Spending Cap – This arbitrary spending cap has resulted in billions of dollars in cuts to state agencies and local governments, particularly in the area of human services. The state spending cap is not currently in law or statute. Making this cap permanent, through a constitutional change, would wreak havoc on our state and municipal budgets for many generations.

 Voting Rights – The right to vote is the most essential element of a participatory democracy, but there are forces across the nation that want to limit voting rights. Our state constitution currently provides for voter ID through signature, but wholesale changes through a Constitutional Convention could expose us to restrictive voter ID laws aimed at disenfranchising people of color and low-income residents.

 Criminal Justice Reforms – Our state constitution protects our right to challenge and reform New York’s criminal justice system. Just this past year, legislative changes show New Yorkers can make a difference: by raising the age of criminal responsibility, enacting bail reform, ensuring access to a speedy trial, improving witness identification procedures and requiring video-taped police interrogation for serious offenses. Recent changes to New York’s Rockefeller drug laws decreased prison sentences for low-level offenders. Local communities have also curtailed stop-and-frisk policies. These necessary reforms could be undone by a constitutional convention.

In sum, it is folly to believe that lobbyists and moneyed interests with cruel, regressive, and parochial concerns won’t attack and undermine New York State’s protection of education, social welfare, the environment, workers’ rights and our system of justice.

Advocates for a Convention promise a better environment, better criminal justice, cheaper college, improved secondary education, and, magically, clean government.  But they’re empty promises that guarantee nothing.  They promise to “Make New York Great Again”, but offer no specifics or a realistic political path to accomplish these ephemeral goals.