Constitutional Convention is a Golden Opportunity

NOVEMBER’S BALLOT QUESTION ON CONSTITUTIONAL CONVENTION IS A GOLDEN OPPORTUNITY

By Felicia Gross

As a rising college sophomore, I was lucky enough to be selected as an intern to the New York State Executive Chamber, which was then-Governor Mario M. Cuomo’s executive office in Manhattan. Every day for a summer, I would take the Port Jefferson line of the LIRR to 2 World Trade Center, where 18 other interns and I would research and analyze issues facing the state. On Tuesdays, Gov. Cuomo held a regular press conference where he would hold court with the media. That summer, he answered almost every question – whether about the state budget or the Yankees – by talking about the upcoming constitutional convention. Every chance he got, he argued in favor of a “yes” vote to the question of whether to hold a convention. That same question will appear on your ballot this election day, November 7, 2017.

The New York State Constitution provides that every 20 years the following question must appear on the ballot: “Shall there be a convention to revise the constitution and amend the same?” Article XIX § 2. If a majority votes in favor of a convention, in November 2018, delegates will be elected, and a convention would be convened in April 2019. Voters would elect three delegates from each of the state’s 63 senatorial districts in addition to 15 statewide delegates – 204 in total. Delegates would be chosen in the same manner as state senators are selected currently. Elected delegates would work to craft proposed changes to the state constitution. Once the convention concluded, the delegates would submit their proposed constitutional amendments to the voters and the voters would have to approve any such changes by a majority for any proposal to become law. The putative changes could be submitted to the voters either as a single slate of proposals (as in 1967) or as several questions (as in 1938). Since 1777, New York State has held nine constitutional conventions, the most recent in 1967. Notable alterations to the state constitution arising from prior conventions were provisions which established a right to a free public education and required the Adirondack Preserves to be conserved in perpetuity (“Forever Wild”).

We need a convention now. Here’s why. For years now, the state legislature has been mired in dysfunction, proving time and again that it is simply unwilling to tackle needed reforms. Instead, we essentially have a de facto government-by-indictment, which in addition to being invidious, has paralyzed the legislature. More than twenty elected officials have been convicted in New York in the last decade alone. In 2015, two of the state’s most senior legislators – the Speaker of the Assembly and the Senate Majority Leader – were separately indicted, tried and convicted of violations of the federal honest services law, 18 U.S.C. § 1343. Their indictments and subsequent convictions were partially predicated upon the allegation that they misused their office in their outside employment. While their convictions were recently overturned, the U.S. Attorney for the Southern District of New York has stated his intention to retry both. Conservative estimates of the cost of their federal prosecutions is in the millions.

Common-sense measures such as enacting a law that would ban outside employment for legislators have broad public support, but such proposals are routinely stalled or defeated in Albany. There are many other proposals worthy of serious consideration, such as requiring merit-selection of state judges, allowing for recall of state officials, providing for term limits for state legislators, and reforming our campaign finance system to provide for public financing of campaigns and closing the so-called LLC loophole (limiting so-called “dark pool” contributions).

Those opposed to the idea of a convention object (as they did the last time the question was on the ballot in 1997) primarily on two grounds. First, that the convention will not be democratic at all, but due to New York’s antediluvian ballot access laws, will be filled with puppets of the party bosses, monied interests, or double-dipping sitting legislators who will hijack the convention and use the process to roll-back important protections. Such fears have produced an unlikely alignment of interests on the right and left, such as labor unions, environmentalists, and gun advocates, that have joined forces in contending that the status quo is preferable to a roll-back on critical rights. Second, opponents contend that a convention would be too costly. These arguments do not hold up upon close scrutiny.

While it is true that New York’s strictest-in-the nation ballot access laws governing candidate selection are profoundly troubling, that is a reason to vote for a convention -- not against it. The argument goes as follows: it is too difficult for regular citizens to get on the ballot during regular state senatorial elections, so we should not even try to get them on the ballot for a convention. I cannot agree. If the system is not working as is, far better to challenge and change that system by having a number of ballot access challenges in which average citizens seek to be delegates. In addition, the ballot access system has not meaningfully changed in the past twenty years, and, absent significant citizen participation, is unlikely to change in the next twenty years. That some would seek to preserve the status quo because the current ballot access system is impenetrable and only available to a few insiders demonstrates how low we have allowed the bar to be set. Legislators who attempt to double-dip by receiving a delegate salary as well as a legislative salary should be held accountable and voted out of office. And, though it is possible that a majority of delegates will propose changes that are anathema to the majority of the general public, there is a critical check on the constitution being razed by a tyrannical minority in the form of the requirement that the proposed changes be ratified by the entire voting public at the convention’s end in order to take effect. In short, the antidote to hijacked democracy is more democracy — not less.

Yes, the convention would be costly – by any measure. Professor Gerald Benjamin of SUNY Albany has estimated that the 1967 convention cost approximately $7-$15 million; adjusted for inflation, that figure would be approximately $47 million. However, the cost of inaction is arguably greater. The cost of federal prosecutions of New York State officials in past four years alone rivals that number. In addition, there are several measures which, if enacted, could result in a net reduction in cost.

At bottom, the vote is a choice between change versus more of the same. Here on Long Island, we cannot afford the status quo — young people cannot get summer jobs, college graduates cannot pay back student loans, or afford to stay here, and an opioid epidemic threatens to eviscerate entire communities.

The November 7 ballot question presents a once-in-a generation chance to effect meaningful change. The question will not appear on the ballot again until 2037. Governor Mario Cuomo was right: if voters are fed up with government by “three men in a room,” a constitutional convention is a golden opportunity for change. On November 7, you will be presented with that opportunity. Take it.

Felicia Gross is a former intern to Governor Mario M. Cuomo and a graduate of Duke University and Duke Law School. She is a longtime resident of Suffolk County, New York and spent many summers in Port Jefferson. The opinions expressed herein are her own.