By Arthur Z. Schwartz
This November, we have a general election. In New York City, it will be kind of a sleepy election, with a surrogate of Donald Trump running against Bill de Blasio for mayor. But, as we get closer to November 7th, you will start hearing a lot about a question being posed on the back of the ballot: Should New York hold a constitutional convention in 2019?
The New York State Constitution contains a provision that gives the public a formal means of combatting entrenched interests in Albany. It’s a gift to the people of New York that they can draw upon every 20 years—their right to call a constitutional convention whether the legislature feels it’s necessary or not. The process (if there is a ‘yes’ vote) will involve electing delegates in November 2018, a convention (of four to eight weeks) held in April 2019, and a public referendum on any proposals adopted in November 2019.
Since the first constitutional convention was held from 1776 to 1777 to replace New York’s colonial charter, the State has held eight other constitutional conventions. The Constitution was last entirely rewritten in 1894 at a convention which added the Education and Conservation Articles to establish a system of free common schools and to secure the state’s forest preserve as “forever wild.” In 1938, a constitutional convention proposed, and the people subsequently approved, provisions protecting the rights of labor and calling on the legislature to provide for the aid, care, and support of the needy.
The last convention was held in 1967. While it advanced important reforms like independent redistricting, and a woman’s right to choose, the amendments, which were presented as an all-or-nothing package (including some controversial proposals to fund parochial schools), were voted down. So our basic Constitution has not been changed since 1938.
COMBATTING ENTRENCHED INTERESTS
A constitutional convention, designed to enable the public to overcome entrenched interests, is opposed by most members of our legislature. Although members of that legislature accomplish very little, they want to be the gatekeepers of change—or the lack thereof. But for all of us, a constitutional convention is a unique opportunity to secure needed change. The election of delegates committed to needed change has happened before and can be achieved again.
NEEDED CONSTITUTIONAL IMPROVEMENTS
Those supporting the call for a constitutional convention have already begun developing a platform. Here are a few of their ideas:
a) Legislative Ethics Reform:
The old adage, “If it ain’t broke, don’t fix it,” has no application to the New York State Legislature. It is beset by breaches of the public trust, outright corruption, and by enormous money-based conflicts of interest. Bribes are concealed as income from outside business dealings. Campaign contribution limits set by the legislature are too high to avoid the obvious appearance that an office holder will be beholden to the contributor. Bills called ‘midnight specials’ surface for the first time in the middle of the night and are passed immediately so the public will have no chance for input. There is no independent ethics enforcement, and the existing ethics body, the New York State Joint Commission on Public Ethics (JCOPE), is toothless. New York’s election districts are grotesquely gerrymandered to assure re-election. This is the needed change:
- Establish an effective ethics enforcement agency independent of elected officials’ control.
- Set and implement meaningful campaign contribution limits and enforcement.
- Shift redistricting power from the legislature to an independent districting commission to end gerrymandering for incumbent and political party protection.
- Expand public input into the legislative process by strengthening requirements that allow for public review and discussion of proposed legislation. b) Fix
New York’s Flawed Election Process:
New York ranks 46th nationally in percentage voter turnout. It is too hard to get on the ballot, too hard to take on incumbents, and too hard to vote. This is the needed change:
- Mandate early voting and allow voting by mail.
- Have state-wide publicly financed elections.
- Set term limits for all positions.
- Automatically register voters.
- Allow voters to change their party affiliation within one month of the party primaries (it is now 11 months).
- Make the New York State Board of Elections independent and supported by a non-partisan staff.
- Establish a non-partisan ‘top-two’ non-partisan primary system, like California.
c) Guarantee a Clean and Healthy Environment: The New York Constitution has provisions for conservation and protecting the forest preserve as “forever wild.” However, the environment is mentioned only in the context of natural resource management. No mention is made of clean air, water, etc. This is the needed change:
- Guarantee healthy air to breathe, clean water to drink, and a clean environment.
d) Enforceable Right to Educational Opportunity:
New York’s top court has held that our Constitution guarantees every New York student a sound, basic education through high school. But the courts cannot make the legislature, or the governor, provide the needed funds. As a result, many public schools are seriously inadequate. Also our Constitution makes no mention of higher education. This is the needed change:
- Require funding, in every community, of the right to a sound, basic public school education through high school.
- Mandate readily affordable and debt-free tuition at public institutions of higher education.
e) Expand Civil Rights Protection and Make It Enforceable: Since 1938, the New York Bill of Rights has contained a civil rights provision, which reads as follows:
“No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state.”
This seemingly strong provision, however, is illusory. New York courts have refused to make it enforceable. This is the needed change:
- Make the Civil Rights provision enforceable and expand its scope, now limited to race and religion, to protect women, members of the LGBT community, and people with disabilities.
f) Health Care:
The Constitution states that we have a right to health care “as determined by the legislature,” Which means that it is not enforceable. This is the needed change:
- Amend the Constitution to require that the government provide health care for all, including through the maintenance of hospital and nursing homes, and a system of insurance coverage that leaves no one uncovered.
g) Other Proposals: Pro-Yes forces want the Constitution to allow municipalities and counties more financial autonomy (called ‘home rule’), a simplified court system with judicial selection taken out of the hands of politicians, the creation of a public pension system open to all, bail and criminal justice reform, and many more.
A constitutional convention would create an amazing opportunity to address some of New York’s most pressing problems, without having to go through the annual song and dance of a corrupt legislature. The worst we wind up with is the status quo. But just the potential for more invites a ‘yes’ vote.