Like the arrival of the 17-year locusts, the New York State Constitutional Convention referendum comes before us too infrequently for most people to remember the last time it happened. During the 1846 convention the delegates decided that presenting the referendum to New York voters should occur every 20 years. Between 1777 and 1967 the average gap between conventions has been 23 years, but there hasn’t been one since ’67.
“There’s a feeling throughout the country,” said Henrik “Hank” Dullea, vice president of university relations emeritus at Cornell, “that people should have an opportunity to reflect on the structure of government.” Dullea, who attended the 1967 convention, has been advocating for a 2017 convention and at Ithaca’s town hall on April 7 debated Assemblywoman Barbara J. Lifton on the subject.
Lifton opposes holding a convention. “Our constitution … has many good things in it,” she said that night, “that I and other progressives want to preserve, such as support and protection for public education, for both public and private workers, for social welfare, and for the environment, among other area.” Lifton said that the unbridled spending allowed by the Citizens United decision would skew the selection of convention delegates in favor of the rich and powerful.
Nine conventions have been held since 1777, but a completely new state constitution has only been adopted four times. We are still operating under the 1894 document, although it was substantially revised by the actions of the 1938 convention. A referendum to have a convention was on the ballot in 1997, but it failed by a wide margin. The public votes three times in the convention process: first, to decide whether or not to have the convention; second, if that passes, then they vote to elect delegates; and third, they vote ‘yea’ or ‘nay’ on the changes that are proposed by the convention. The changes can be presented in parts (as was done in 1938) or as a single package (as was done in 1967).
The number of convention delegates is written into the state constitution. There are to be 15 statewide (“at large”) members and three from each of the state Senate districts. There are presently 63 districts, making a total of 204 delegates. If the public passes the referendum in November 2017, then the convention would convene on the first Tuesday in the following April. It must end six weeks before the general election to give the public time to mull over the proposed changes. If the vote is held in early November, then the convention must end in September.
The selection process is at the root of Lifton’s concerns. “This is not going to be the average person going to the convention,” she said. “They couldn’t raise the money [for a campaign] and make themselves known. It tends to be 25 to 30 percent of the delegates are sitting legislators; they may be just fighting for the status quo.” [Editor's note: Dullea noted that in 1967 only 7 percent of the delegates were sitting legislators.] That said, if the referendum to have a convention were to pass, Lifton said she would run to be a delegate in order to preserve progressive gains.
Why Have a Convention Now?
Dullea believes that it has simply been too long since there has been a convention; the 50 years since the unsuccessful 1967 event is nearly double the average gap. “It is almost impossible for the legislators and the governor in the normal course of business to look at themselves,” he said.
Dullea has the perspective of an appointed state employee, not an elected official. He served from 1983 to 1991 as director of state operations and policy management for Gov. Mario M. Cuomo, responsible for directing the day-to-day activities of New York State’s more than 65 departments and agencies. He was also assistant secretary to the governor for education and the arts in the administration of Gov. Hugh L. Carey and was a legislative budget analyst for the New York State Assembly ways and means committee.
Lifton was on the staff of her predecessor Marty Luster, but has been an assemblyperson since 2003. “What would change the current dynamic?” she asked, after noting how many legislators would be convention delegates. “There is polarization in our state. It’s not as bad as Washington, but there has been major erosion on the issues of education and women’s rights.”
As an example, Lifton described the current effort in Albany to put an education tax credit into place. The law would allow someone to donate $1 million to any school, public or private, and then receive a 90 percent tax credit. In response, the governor has proposed a 75 percent credit. “These contributions would go to private schools,” said Lifton. “And where would all the charitable contributions go, if you could get 90 percent of what you donated back in this case?” She said that several hedge-fund billionaires donated to the campaigns of the opponents of four of her colleagues who had opposed this tax-credit bill.
The assemblywoman believes that with this kind of money in the mix, a constitutional convention at this time would be a disaster. “All the case law based on this constitution would be swept away,” she said. In her remarks on April 7 she mentioned the Campaign for Fiscal Equity ruling of 1995 as an example. It led to a state Supreme Court decision in 2005 that determined “many New York children were not being afforded [an] adequate education,” Lifton said, “and the State had to reform the school aid formula and add money … so that poorer schools could be brought up to adequate standards and performance.” This process was brought to a halt by the Great Recession and is still not complete; Lifton does not want to lose the promised changes through alterations to the Education Clause in the state constitution.
Dullea, on the other hand, finds the existing clause inadequate because it makes no mention of levels of preparation for higher education versus the workforce. In fact, it makes no mention of higher education at all. “With the [presidential] candidates talking about free community college,” he said, “they should be given more recognition.”
In addition, Dullea sees a great deal to fix in the running of the state government. He said over 100 agencies report directly to the governor, but cabinet meetings are rarely called. “The staff in the executive chambers seems to be running things,” he said, “not the commissioners. The constitution says there should be 20 civil departments and agencies.” The additional departments have been created by the legislature.
Dullea believes a convention should take a look at the powers of the governor, the attorney general, the comptroller, and the legislature. “The constitutional convention takes place in the context of national events,” he said. “In recent years the U.S. attorney has been the focus of public corruption cases. Why not the state attorney?” At present the state constitution does not allow the state attorney to look at the affairs of other departments. Corruption issues have to be referred to the state attorney by the comptroller.
Dullea would like the convention to discuss term limits and changes in term length for legislators (both senators and assembly members have two-year terms now), and term limits for chairs of legislative committees. The retired state official and college administrator also questions why there should be two houses of the legislature. The existence of two houses leads to many “one house bills,” wherein legislators pass a bill in one house and it (or a version of it) dies in the other house.
In the original constitution the senate was largely elected by wealthy property owners, which ended in the mid-19th century. The “one person, one vote” decision by the Supreme Court (Reynolds v. Sims in 1964) erased the difference; now equal population is the standard for electing members of both chambers. “Now each house shapes district lines for its own people,” Dullea said. “Both agree to not touch each other’s lines.”
Dullea cited a 2007 report by Hon. Judith Kaye, chief judge of the Court of Appeals, which called the state court structure “the most archaic and convoluted in the nation.” Its complexities, he said, cost business, industry, and municipalities millions each year. In contrast, California has a single trial court system for the entire state.
A Slippery Slope?
Lifton views the convention as primarily an opportunity for well-funded conservatives to remove or diminish many of the protections provided by the government to the citizenry, but also benefits promised to its employees.
“One of the biggest concerns progressives have is that pension protection could be undercut or eliminated,” she said on April 7. “Currently our constitution says such pensions ‘shall be a contractual relationship, the benefits of which shall not be diminished or impaired.’” This language was added to the constitution in 1938.
Dullea doesn’t agree. “There is the fear that anything in the constitution that is amended to deal with public officials convicted of violating the public trust—that they should have their pensions taken—will threaten all public pensions. I say, ‘Where is the organized group gaining traction to remove public pensions?’” He likened it to the NRA’s fear that any restriction in gun ownership was a threat to Second Amendment rights.
But Lifton’s more general concern is for the public. “In spite of the enormous cutback in public assistance that happened with welfare reform in the ‘90s,” she said in April, “the right is once again attacking assistance to those in need.”
Dullea looks at the convention as an opportunity to devolve all social welfare responsibilities—not just Medicaid—to the state, rather than saddling counties with them, as is done in New York now. He recalled that at the failed 1967 convention a 10-year phase-in was proposed, but conservatives had opposed it as too much of a burden on the state. Today, however, State Senate candidate Leslie Danks Burke has claimed that shifting Medicaid costs to the state would increase the state budget only 1.5 percent. (Medicaid constitutes 33 percent of Tompkins County’s and 89 percent of Chemung County’s budget.)
Faith in the System
Lifton is firm in her belief that a constitutional convention held in the current political climate would be a “Convention of Elites, if you will, who may be pre-disposed to deal with the concerns of the elite, … [and not] with the concerns of most people,” she said at Ithaca town hall, “Many think that we would need to fix that before the call for a convention, and all acknowledge the difficulty of doing that.”
Dullea attended the 1967 convention and wrote his doctoral dissertation on it. “Relationships among the delegates are different than they are in their regular jobs,” he said. “Everyone is on an equal footing.” He said many legislators chose not to run so they wouldn’t be seen has having two jobs at the same time, drawing two salaries, and getting pension credit for both.
Gov. Andrew Cuomo proposed a commission this year to examine constitutional issues. The legislature stripped from the budget the $1 million allotted for the commission. The Republicans are the minority in the Assembly and therefore the most left out of political power, Dullea noted, which is why Assemblyman Brian Kolb (R-Canandaigua) is in favor of the convention. Most majority party members in each chamber oppose the convention.
Dullea cited polls that suggested—albeit indirectly—that the public may favor a convention. A Gallup Poll of Feb. 20 asked “Do you have confidence in your state government?” New York State ended up eighth from the bottom (which was occupied by Illinois). A Siena Research Institute poll at the end of June asked New Yorkers to rate corruption in state government. “When it comes to ethics reform, the Governor and Legislature did little to win over the hearts and minds of New Yorkers. A strong majority says that legislation passed this session will not reduce state government corruption. That sentiment is shared by half of Democrats, more than 60 percent of Republicans and independents, a plurality of New York City voters and a majority of non-City voters,” said Siena College pollster Steven Greenberg.
The same poll did ask New Yorkers about a “ConCon.” “Two-thirds of New Yorkers have heard or read nothing about a vote next year on whether New York should hold a Constitutional Convention, with another almost quarter hearing very little,” Greenberg said. “While New Yorkers haven’t heard much about a ConCon, they know they want one—by a margin of 68-19 percent, unchanged since it was 69-19 percent in early May. Support is strongest with independents, 72 percent, nearly as strong with Democrats, 69 percent, and ‘weakest’ with Republicans, who ‘only’ support it 63-20 percent.” •
Editor's note: Several clarifications and minor corrections have been added to the on line version of this article. For example, there are 63 senate districts, not 62. New York State has a comptroller, not a controller. It is judge Judith Kaye, not Kay.