Constitutional Convention: An Argument For and Against the Convention

The New York State Constitutional Convention: Two viewpoints (as published on the blog Truthsayers,

The argument in favor of a ConCon, by Emily Adams

As the co-chair of Tompkins County Progressives and an executive board member of the New York Progressive Action Network, I’ve been watching the debate on the NYS Constitutional Convention with great interest. Although neither organization has decided to take a position in favor or against a “ConCon,” I personally have decided to come out in favor. I would like to share the reasons why I have made this difficult decision, in the form of various questions that I have asked myself during the process.

What is a Constitutional Convention anyway?

A Constitutional Convention is a chance for delegates to a convention to open up a constitution and make changes. The delegates can add protections, or remove protections. They can update language, improving efficiency and clarity in the document and in the functioning of the government, or make a mess of it. Right wingers would love to open up the US Constitution – because they control a majority of state legislatures and could push their agenda on the whole country this way. In New York, a state Constitutional Convention would not be able to change those things that are protected by the US Constitution, so there is less risk involved. Plus, our delegates would be elected in New York, and we are a blue state. But there are nevertheless still risks associated with holding a state ConCon.

What are the risks to opening up the New York Constitution?

Basically, majority rules, and everyone worries that their side won’t be in the majority. The NRA and various right wing groups worry that crazy liberals will be in the majority and that we’ll push for more protections for residents, the environment and so on. (They have good reason to fear that….) Lefties worry that Big Moneyed Interests from out of state will buy off the delegates and brainwash our voters into supporting the horrible proposals that get made. (I don’t doubt that they will try their best….)

So, if there are risks, why should I support a ConCon?  

The NYS Constitution is terribly, terribly out of date. The last time delegates met and tried to revise it, was in 1967. At the time, my parents had a party line and the town switchboard operator patched calls through to our whole street. The proposed revisions to the Constitution did not get ratified by the voters in 1967, however. So NY is still operating under a Constitution that was most recently updated in 1938. 1938!  Women had only recently won the right to vote.  The civil rights movement wasn’t even on the horizon. As a result, our current Constitution says nothing about reproductive choice, equal pay for women, rights for the LGBTQ community, rights to clean air and water, rights to healthcare, criminal justice issues, and so forth. It talks about basic education through the 8th grade. There is nothing about privacy, cybersecurity, and so forth. The world has changed a lot since 1938.

Albany, like Washington, is a swamp.  Everything about it is corrupt. We won’t see any progress on that front until we have election reform and get big money out of politics. We need to end gerrymandering, adopt term limits, end New York’s ridiculous 6-9 month advance deadline to register to vote  with a political party, close campaign funding loopholes, support small donor matching on campaigns, allow early voting, bar outside income for state legislators, and so on. Until we do those things, we won’t get real change. A ConCon is a way to force those changes, with or without the cooperation of those who are in power right now and benefiting from the system the way it is.

A new state Constitution could save New Yorkers millions of dollars.  Yes, there will be one-time costs associated with holding a Convention (estimated at less than $50 million), but these will be dwarfed by potential savings ($600 million per year, alone, if delegates fix our archaic court system.) The annual budget for the two houses of the state legislature is $220 million, by way of comparison.

Donald Trump is President.  If he has his way, many protections at the federal level will be gone by the time he leaves office.  If the country loses the ACA, anti-discrimination and hate crime legislation, and freedom of reproductive choice, to name a few examples, we could still be protected in New York if we put clear policy directives and standards into our own Constitution .  We can also add language to counteract Trump’s desire to make life as easy as possible for millionaires and billionaires.

The Resistance Movement needs something to fight FOR.  Seasoned activists and new activists alike are getting depressed, overwhelmed, and burned out by the constant barrage of bad news. We have to go on the defensive in a new direction every day, just to try to maintain the status quo. Unfortunately, the status quo was never very inspiring (which is largely why Clinton couldn’t beat Trump last year) and it is hard to get new recruits to the movement. If we had something positive and exciting to work towards, more people would get involved (the same way thousands of people who had never done anything political before, got up and got involved in Bernie’s campaign.)

But… I am still concerned.  Aren’t there other choices?  

Couldn’t we amend the constitution via legislative action?  Yes. This has happened more than 200 times since our Constitution was written, including 15 times in the last 20 years. But none of these amendments addressed real reform. On November’s ballot, there is one such revision being offered, an amendment that would withhold state pension benefits from retired legislators who were convicted of crimes related to their work. It will affect a few dozen politicians, years after their criminal behavior. After decades of corruption scandals in Albany, and a huge outcry from the public, this is the best they could do? The legislature is simply not motivated to take up any reforms that might hurt them or upset the status quo. If we want reforms, especially within the legislature itself, we will need to have a Constitutional Convention at some point. This fact was recognized by the delegates and voters when they wrote the provision for a ballot question every 20 years.

Can’t we wait and hold a Constitutional Convention in a few years, after the “Trump 24/7 crisis period” is past? Well, maybe. The laws say that the question about holding a Convention must come up every 20 years, at a minimum, but the people could ask their legislators to put the question on the ballot at an earlier time, as well. But these legislators are the ones who do not want to lose their seats or their gifts from lobbyists, so what are the chances that they will put the question on the ballot on their own initiative?

Can’t we just rally our forces to elect a new governor and get rid of IDC state senators? (The IDC are Democrats who caucus with Republicans.) These are both worthy aspirations, and would go a long way toward making it possible to amend our constitution via legislation. However, corruption is a bi-partisan affair and simply flipping senate control to the Democrats will likely not be enough to bring real reform in the near future. Also, it might not be too hard to do both things: get the results we want from a Constitutional Convention AND regain control of the state senate and remove Gov. Cuomo.

If the Yes vote wins, how do we make sure that we get the results we want?

If the yes vote wins in November, political parties will hold primaries next September to choose their delegates, and everyone will vote on delegates in November 2018. Three delegates will be elected from each state senate district, along with 15 at-large delegates. The Democratic Party and the Republican Party will certainly each field a full slate of candidates, and the Working Families Party and Green Party might try to do the same. I hope they will either cross-endorse or remain silent, because it is very important that “our side” doesn’t split the vote and allow right wingers to become delegates. In any case, we need to run progressives in Democratic primaries, at a minimum. If our progressives lose in the primaries, most likely we will need to support the winning Democrats, even if we aren’t especially fond of them. We might be able to consider other options.

The goal would be to get 103 Democratic delegates (or delegates who will caucus with Democrats) to keep the control of the whole process out of the hands of the far right. Among these 103 Democratic-caucusing delegates, it would be good to have 30 progressives. These delegates could act together to force the majority Democrats to listen to their demands, in much the same way as the Freedom Caucus is able to get their way, in the US House of Representatives.  

Where will we be able to elect 30 progressive Democratic delegates? Most likely in NYC, where the Republican Party is so weak that their candidates often lose by 70 or 80 percentage points.  If a progressive candidate can win in the primaries in NYC, then they are a shoe-in for the general election.

It’s worthwhile to note that, even though our State Senate is controlled by Republicans, our state senate districts are majority Democratic, in voter registration and voting habits, and more so now than during previous conventions. Out of 63 Senate Districts, 40 voted for Hillary Clinton (49 have more registered Democrats than Republicans, and 55 voted for Obama in 2012). Many voters upstate voted for a Republican state senator (or an IDC senator) and then crossed over to vote for Clinton or Obama. There are also districts, like Tom O’Mara’s, where the Republican won the senate seat but the Democrat (Leslie Danks Burke) outperformed Clinton significantly. I might be hopelessly naïve, but I see reason to be optimistic in these numbers. It seems logical to think that Democratic candidates will do as well as Clinton, or out-perform her, on average, all else being equal. It also seems logical to think that Republican candidates will not do as well as Trump did last November, as his popularity is falling rapidly.

Here is one “road to victory”, based on the information above: In the 26 senate districts that voted for Clinton by more than 20 points, we can expect to get 78 Democratic delegates and of those, hopefully 26 progressives (1 in 3). In the other 14 districts that Clinton won, but more narrowly, we can aim to get 14 Democratic delegates, 2 of whom are progressive. Among the at-large delegates, we can aim for 11 out of 15 to be Democrats, 2 of whom are progressive.  That would bring us to a total of 103 Democratic delegates and 30 progressives. Anything above that is bonus. To me, this looks eminently doable.

Assuming we meet or exceed the 103/30 goal, the rest should be relatively easy. Delegates will form committees and draft proposals and seek public input, and put together one package (or more likely, several smaller packages) for the voters to ratify. The public supports Medicare for All, criminal justice reform, an ERA, reproductive rights, environmental protections, election reform and all our other issues, by large margins. The delegation would be ill-advised to put forth any proposal that would, say, limit the rights of workers or endanger Forever Wild. There is no popular support for either of these measures. Of course, Big Money could, and probably would, try to drum up support for bad proposals, using a mixture of lies and slick marketing. So our 103 Democrats and the public would have to stay vigilant.

Historical precedent doesn’t always predict the future, but it is still interesting to note a few things about the 1938 Constitutional Convention. The Republicans were in the majority because the Labor Party did not endorse all the Democratic candidates and ended up splitting the vote.  Nevertheless, the delegation put forward a number of proposals that were very progressive – including protections and pensions for state workers. They even crafted the pension language in such a way that the pensions would fall under US Constitutional protection, so that they couldn’t be taken away by any subsequent change to the Constitution in New York.  All this, while Democrats were in the minority! This is perhaps not so remarkable when one considers that Constitutional Conventions are much more responsive to popular sentiment that entrenched politicians in legislative office.

What else do we need to think about?

We need to keep the public educated and engaged. In previous ballot question years, the governor at the time set aside money to educate the public. Governor Cuomo proposed $1 million for a preparatory commission in his 2015 budget, but both houses of the legislature immediately stripped it out. It will be up to us. Newspaper editorial boards across the state, to their credit and my surprise, have come out largely in favor of the ConCon and have provided many in-depth analyses. We need to support them, remind them to keep it up, and especially support independent media, who will in turn also keep the pressure on the established media.

Transparency:  When the legislature and/or the ConCon delegates meet to decide on procedures, activists and the public need to speak up and demand that all discussions, committee meetings and public hearings be livestreamed and recorded, for maximum transparency. The Big Moneyed Interests are certainly out there, and we need to keep the whole process out of the shadows.

Unstacking the deck:  Currently, elected office holders are allowed to run for ConCon delegate and serve in both offices (and earn a salary from each), simultaneously. It would be a cause for concern if most of our 103 Democratic delegates were also sitting politicians, because we could expect them to then resist a lot of the reforms we want to see happen. Sitting politicians certainly would have an advantage in name recognition and might have an easier time getting elected. One step we can take to “unstack” the deck is to recruit among retired politicians and among candidates who have recently run in the district but lost. These people would be more likely to be reform-minded than those currently in office. We can also put pressure on our elected officials, telling them we are paying them to work for us already – what added value will we get if we pay them double for the same work week? I believe many of them, especially if they don’t serve as a state senator already, will be reluctant to run two election campaigns simultaneously. They could overreach and end up losing both races.  (To be clear: it will probably help us to have some delegates with actual experience and actual frustration at Albany, at the table, so that we come up with the best and most effective reforms .)

Working with labor:  Labor unions have been funding nearly the entire “no” campaign, and there is a fair amount of “bad blood” building between union progressives and pro-ConCon-progressives. Several myths are circulating among the public (for example, a myth that union pension contracts could be broken during a ConCon, a myth that a convention would cost around $350 million, and a myth that a non-vote will count as a yes-vote.) Labor union leaders deny that they are responsible for spreading these rumors. I have friends in the labor movement who are dismayed, and tell me that there are legitimate reasons to vote “no”, not these reasons, and those who are spreading the rumors are giving unions a bad name. It is unfortunate. I sincerely hope that all progressives will come together again after November 7th.  We will need labor union leadership to help recruit and elect good delegates, if the Yes vote wins, and they will need us to work hard with them on the legislative front, if the No vote wins .

I’m a team-player.   Who is supporting which side?

Polling shows that People of Color (blacks and Hispanics), people under 35 years old, and people earning less than $50K a year, are strongly in favor of a ConCon. People who live in Union households, Republicans, and people earning over $100K a year are strongly against a ConCon. Everyone else is more or less in the middle. (see the crosstabs of the October 6th Siena College poll, here: Organizations that support the “Yes” campaign include the League of Women Voters, Citizens Union, Effective NY, the People’s Campaign, The Black Institute, Restrict & Regulate, Forward March NY, New Kings Democrats, the NY State Bar Association and others (Black Lives Matter NY is reportedly expected to endorse the yes vote as well). These are primarily good-government organizations and advocates for criminal justice reform. Organizations that oppose the ConCon are primarily unions, as well as some environmental groups. To date, money raised and spent on these two campaigns comes overwhelming from the unions, plus one millionaire who has a passion for progressive causes (Bill Samuels of Effective NY). The “yes” campaign is being outspent many times over, while the (non-union) Big Moneyed Interests either ignore the situation, or bide their time (depending on who you ask.)

My Conclusion:

I am voting yes, with hope and a measure of anxiety. I believe we need a ConCon and that we can elect enough Democrats and progressives to get the results we would like. I believe the process will be good for democracy. I feel it is important for progressives to stand with young people, poor people, and black and brown people, because it will be essential to engage these demographics if we want to unseat Trump in 2020. I do worry that our movement is lacking enough energy and motivation to overcome (potential) Big Money influence… but at the same time, I believe a robust ConCon process could be the perfect way to build up energy and motivation. I certainly respect those who have been activists longer than I have been, and who sincerely believe that we won’t be able to counter Big Money influence. If you don’t think we can elect 103 Democratic delegates including 30 progressives, while insisting on a high level of transparency from the delegation and while cultivating a high level of engagement from ordinary citizens, you should vote no. I hope everyone will study the issue and make up their own minds.  This is an important vote with real consequences. And unlike most votes we cast in New York, the result is not a foregone conclusion.

Your Vote Matters.

The argument against a ConCon, by John O’Malley

I am the Legislative Coordinator of CWA Local 1180 in New York City, which is an affiliate of NYPAN.  I serve on the NYPAN board of directors and have addressed audiences at several NYPAN informational events.  NYPAN has hosted many such events and debates, including informal discussions on their membership listservs.  The decision whether to support or oppose a Constitutional Convention is very personal.  The views I express below are my own, not those of NYPAN.

When shopping for a new car, the saleswoman tells you that you can buy the latest model, with all of the latest gadgets, for only $62 per month. When you ask for more details including a sales contract in writing, she tells you that there is nothing to worry about; the price is so cheap and there is no risk because if you don’t like it, you can just trade it in next year. You’ve got nothing to lose. She says that you don’t want to miss this “once in a generation” deal.

New York State’s Constitutional Convention is very similar. Voters are asked to say yes now to unrealistic promises, even though they don’t know what it will cost and they don’t know what it would risk. The justification for saying yes is focused on what we might get, not what we will get. If the public takes the deal under these conditions, we only know a few things; there will be 204 delegates elected, three from each senate district and 15 at-large.

The convention will begin on April 2, 2019. There are a few rules of order establishing a quorum and compensation of the delegates. But the delegates get to choose all their staff — who and how many to hire; and even how much to pay them! And the delegates get to choose which research to consider, from whom, and all other costs such as printing, journaling and copying. They choose their own officers, and the parliamentary rules. And they even decide how to present the amendments to the public for consideration.

Since the delegates have a tremendous amount of power, not only to change our state’s constitution, but also over the procedures under which those changes are researched, written, voted upon, and presented to the public, it is critically important that we understand how they get elected and who can influence that. So, how does that work?

The election of delegates follows the same rules found in current election laws. For example,  they are allowed to receive some of the highest levels of contributions of any state in the country, and there is no equality of access guaranteed by public funding or matching resources. Delegates can be current legislators, former legislators, family or staff of legislators, political party leaders, lobbyists, or other government officials. The only people restricted are sheriffs. And just so you know, the voters in each district have been gerrymandered into neat packages, and this gerrymandering has caused the current senate to be dominated by the party (Republican) that has a disadvantage in enrollment of members by at least 2-to-1. This is not new; it has been the case since 1939. And just like in the senate, the convention delegates of one party can certainly caucus with the other party. Remember, there are no rules. So once the delegates are elected, they are free to operate how they see fit. If voters want more of a say in the delegate elections and want to vote in the primary election for delegates in 2018, they would have had to switch parties in October of 2017 – two weeks ago. So, for anyone that has not done that, it is too late. As you can see, this is not just as easy as voting this year and forgetting about it.

Before we approve the convention, there are two things we should know; how do the delegates become delegates (and who can influence them)? And once they are elected, what are the rules that we can count on? But we will not know the answer to those questions until after we agree. So how can we accept it now, without knowing what we’re agreeing to?

Let’s pause for a moment to consider that there is a default way of amending the constitution – one that is available to us every year. And then there is the convention method, which is only available every twenty years, or when the legislature initiates a call for convention. So we can choose the method that suits our needs best. This is not a question of progressive versus conservative; and it is not a question of change versus status quo. It is a question of which is the best process to get the change we want. Only after we choose the method, will there be a time to deliberate about which changes we actually want; and opinions vary.

The convention provision is actually a safeguard, in some ways. It was made available because the people may become so disenchanted by the default method that they might want a way around it. So that is another critical question. Will the use of the convention method really bypass Albany politics? Or will it be more of the same?

The default way to amend the constitution is initiated by the legislature. They propose an amendment and the attorney-general gives an opinion, and then it must be passed by two consecutive, separately elected legislatures, and finally it goes in front of the people for a vote. This process is pretty difficult; it is fraught with politics and special interest alignments and language changes that must be approved and reapproved. But there is no role for the governor, and the people have the final say. One problem with this method is that the legislature is less inclined to pass any amendments that limit their own power. So only certain amendments even get to the people for a vote. And it is very difficult to shepherd a bill through the legislature in the first place, not to mention a constitutional amendment. Politics controls much of the process. But it is not impossible; in fact, it has happened at least 200 times in the last century. Also, the legislators are in this “re-election” game. Since there are no term limits, part of their job becomes getting re-elected and they become very good at shoring up influential parties. It is difficult to knock them out of the game if we are dissatisfied, and it is difficult to get good policy past the politics. Sometimes we end up with really good provisions petering out without getting passed. It is quite frustrating.

But amending the constitution is changing the very foundation under which or laws are built, and it should not be easy. Just like in any parliamentary assembly, a simple majority can be used for rule changes or procedural process, but a super-majority and notice requirements are utilized when amending the bylaws or constitution. Not only should it be harder to change the constitution, but it should not be subject to political whim, either. We have seen an example of the disastrous results of this since the U.S. Senate changed the rules of filibustering, and the use of reconciliation to pass tax reform with 51 votes instead of 60. Making it easier to change the rules is not always better.

So if we are frustrated by the difficulties involved with the legislatively initiated amendments, we should know that it is part of the design. And choosing to go the alternative route of the constitutional convention only makes sense if the default method is so broken that the risks of opening up the whole constitution is safer. But the convention process is certainly not easy. To have a convention we have to elect delegates using the same election rules, with the same unrestricted donation policies, with the same gerrymandered districts, and we have to allow for the possibility of political party operatives becoming delegates, and allow them the latitude to control the rules, voting, processing, presentation and packaging of the amendments… If we do all this, then are we really getting around Albany gridlock? How much extra effort will be expended by electing these extra legislators (delegates) to this extra legislative body? Will the same difficulties occur when electing the delegates?

In order to make this decision, we should ask three important questions: 1. What do we want? 2. What can we really get? 3. What will it cost?

What we want is likely different depending on who is answering. But the answer usually falls into one of three categories; things to improve or expand, things to keep or protect, and things to delete or reduce redundancy. Some people would like to expand the right to clean air and water, while others would like to expand the right to frack on their own land. Some people would like to expand the right to vote (practically speaking) and others would like to expand the right of employers to keep unions out. Some would like to codify the rights found in Roe v Wade, and others would like to codify the right to bear arms. Some want school vouchers, and others want to protect taxpayer money from being commandeered by private interests. Some want to restructure the court system and the structure of the government. Others want to fix the cash bail system and finally fix the education funding system. Some would like to protect the right to a governmental pension, while others would like to protect their right to home rule. Many people would like to delete provisions that have been ruled unconstitutional by the U.S. constitution, and to delete redundant and old language which can be streamlined without losing the meaning of the provisions. So there are a lot of things that different New Yorkers want. There is no unified set of goals. What we want is not clear.

Can we get any of these things? Well – what is the process? How does a citizen get a proposal considered by the delegates? It is the same process as using the legislature. The citizen must have a political connection, or a donor connection. And the citizen must have a movement of people or capital supporting her. Without those, there will be no consideration. This is not easier in a convention than by using the legislature, because the same politics are at play. It has been posited that it may even be more difficult to get a proposal considered, because the delegates will be inundated with proposals from the vast number of special interest groups voicing their opinions while the vast majority of New Yorkers will just be struggling to get back and forth to work. There are no rules limiting access to the delegates, and there is no requirement that they disclose with whom they have been meeting. So the regular citizen will be shut out of the process and will not even know who is influencing the delegates.

Maybe we can get some delegates to advocate for our issues, while others get delegates to advocate for issues important to them. And when the two clash, nobody knows what the rules are, or how they will be resolved, or if they will be considered in committee, or if there will be public hearings… So what will we get done? Who is to know.

Finally, what will it cost? There are many provisions in the constitution that protect rights of the individual citizen. In the 1938 convention, there were many provisions added that strengthened the social safety net, the right to bargain collectively, civil service merit-based rules which ended political patronage jobs, healthcare and education, government pension protection, workers’ compensation and unemployment insurance. There are definitely deep-pocketed interests who would like to be relieved of the requirement to provide workers compensation and unemployment. We have seen a strong push for “pension reform” and many states are being pressured into reducing the right of unions to exist, or just to collect dues. But besides that, we also have private businesses who run schools that have been trying to skim taxpayer money out of the public system and into their pockets for years. In the 1967 convention, those interested in using taxpayer money to privatize education were able to get the delegates to approve that amendment and package it together with many positive changes and made the voters choose all or nothing. So the voters rejected all of them. The costs of the convention include the costs to taxpayers, but also the risks in opening up everything for discussion. What happens when advocates for court reform get what they want, will they look the other way on school funding? What about environmental groups that want to protect Adirondack Park; once they get what they want, will they accept a diminishment of pensions for government employees? What kind of horse trading will happen? Will we have to give up something to get something else? It is impossible to know, now.

The legislatively initiated amendment process is certainly full of resistance and obstacles. However, it also comes with one comfort; when an amendment is considered, only that amendment is considered. There is no requirement to open up the whole constitution just to consider changing a single issue. As we try to make improvements to certain parts, the rest is protected. And while it may not be easy, it is safe. When considering if we should forego the default method, and take the drastic measure of opening up the whole constitution to revision, the real question is whether we can get what we want, while protecting what we want, and making sure we don’t lose anything else. If we cannot be relatively sure of this, then the constitutional convention may not be the more prudent choice.

When buying a new car, you would not sign an agreement without knowing all of the costs and risks. There are probably not many people who would enter into a contract with so few known details.

Likewise, when deciding how to vote on the constitutional convention, please consider the following: Although we have problems with the New York State legislature, and we are frustrated with corruption and ethics problems, and structure of government/courts/education/healthcare and more, and we have a frustratingly difficult time getting things done under the current system of passing legislation and constitutional amendments… will the constitutional convention be easier? Will we have consensus on which things we want changed and which things we want protected? Who will be on which side? How much influence will each have? Will the average citizen really have input into the proposals, or even be able to serve as a delegate? Who is really going to control the process? Well. We do not know. Because there are no rules. All of the rules and decisions will be made after we agree to let them have the convention. All of those political insiders will decide how everything will happen after we agree to give them the authority.

There are 20 million people in New York State; less than half are likely voters. If those voters decide to have a convention, how many will be engaged in the process? Maybe 10 thousand? Most voters are going to vote, and then go back to their life – and hope for the best. If they are dissatisfied with the results, they will blame the 10 thousand for the failure. Imagine buying a car that way – you sign the paperwork, and then five years later you realize that you have to pay for twenty years. You sign today and then find out later that the dealer gets to choose what warranty you have and if he wants to fix the recalls. You signed a contract that left the rules up to them. Whose fault is that? For these reasons, I recommend that you vote NO for the constitutional convention.

Posted in Uncategorized