What We Lost When We Vetoed a Constitutional Convention

Published by Michael Frank on

 

Calling a state constitutional convention is New York’s long established method for fundamental, systematic governmental reform. Yet in a period of pandemic corruption and enormous anger at government, with demands for change from all across the political spectrum, New Yorkers rejected the convention option by a margin of 5-1 this past November. In essence, if 2016 was a year of great demand for change, the regret set in quickly afterward, and 2017 became a year, at least in New York, of holding fast to a system that people perceived to be less frightening than yet more change.

Peter Galie and Gerald Benjamin, co-authors with Christopher Bopst of New York’s Broken Constitution, and strong convention advocates, sat down a few weeks after the election for a post mortem. The reasons for the crushing defeat of the convention question, they thought, were both structural and political. Most voters didn’t even know there is a state constitution; they don’t distinguish between it and the revered national document, which most of them certainly don’t want to be touched in an era in which basic rights are threatened. New York has no initiative process; referenda are limited in use and unfamiliar to many as a way of making decisions. The wording of the convention question, mandated in the constitution for use every twenty years, requires that everything be on the table if a convention is called.

This scares those who have constitutionally guaranteed benefits or favored policies that they don’t want to risk.

Targeted for criticism and change, the legislature fiercely resisted calling a convention. Governor Andrew Cuomo, who at first favored a convention but is up for reelection in 2018, backed away from facing up to legislative hostility and the resistance of powerful organized interests, most importantly labor unions. Peter Galie said that not only did opponents very effectively play the “fear” card (that, on the left, unions would lose their rights, and on the right, that gun owners would face stiffer restrictions), but proponents did a poor job of carefully targeting issues like restrictive voter registration rules. “We were out of step with a time when there’s peak demand for reform and then a simultaneous fear of change.”

“On the left we have what I call the ‘Adirondack Alamo people,’ for whom every fight, from the environment to civil rights, is a ‘last stand,’ ” Galie said. He added  the process of the constitutional convention that opens up the entire New York state constitution to revision presents an existential threat to the rights or benefits some won at earlier conventions. An example is pension protections for union members. “They’ve been so successful in the past under the present, if fractured system, so they now have what economists call a limited margin of utility, where the general benefits that might be gained from reforms are outweighed by the particular benefits that might be lost. The risk just isn’t worth it.”

The convention option is no longer real. It hasn’t worked in any state for decades. However, according to Benjamin, there are no other workable alternatives available to those who want governmental reform. “The political system has become encrusted. So, ironically, as a result of adding in particular protections for the environment, or labor, or the poor – all worthy – the constitution now has vested defenders and stakeholders, and the document becomes self-protective, shielding those in power.” Galie adds that across the U.S., “Legislators will never impose amendments that will curtail their own prerogative, so constitutions, which were meant to evolve, have now become un-amendable.” This is what Benjamin and Tom Gais, in an earlier article on state constitutions, called ‘conventionphobia’.

Galie and Benjamin aren’t ready to quit. Other states have alternative methods for constitutional change that don’t rely on those in power: the constitutional initiative, the constitutional commission. But ironically, getting alternative mechanisms for constitutional change requires amending the constitution through the legislature, a real “catch 22.”

Galie points in particular to neighboring Massachusetts, where Article 48 of the state constitution allows public petitions to become legislative agenda items. The legislature can then shape such initiatives, but they’re not allowed to ignore them. Article 48 currently has many wealthier constituents in the Bay State up in arms over the Fair Share Amendment, which would impose a 4 percent tax on incomes over $1 million to fund transportation and education programs. Opponents say that public initiatives are constitutionally barred from imposing taxation, and this petition may face legal hurdles, but the mechanism of Article 48 is at least a half measure between citizen-led ballot amendments directly becoming law and a tone-deaf legislative body making its own “Alamo-like” decisions: walling itself off from voter interests, and ignoring reform agendas.

Benjamin wonders how long that resistance to reform can last in New York, particularly with a corruption trial scheduled monthly for the first half of 2018. Yet there remains  zero will on the part of New York lawmakers to address it, and an entrenched belief that there is no political cost to this path. For his part, Cuomo has proposed some voting reforms for 2018, but there is little evidence in his state-of-the-state message that he will follow through on promises to root out corruption, even in a year when both he and the legislature are up for re-election.

“I’m fairly cynical,” Galie says, because voters in New York seem to be unable to connect the dots themselves.


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