Needed Constitutional Changes

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 next opportunity for the voters to call a convention will be November, 2017.  It’s time to discuss what topics a convention might address.  Because any proposals adopted by a convention must be approved by the public in referendum before taking effect, those topics should be ones where the public sees a clear need for improvement. 

Background

Since the first constitutional convention was held in 1776-77 to replace New York’s colonial charter, New York 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, and while it advanced important reforms like independent redistricting, none of its proposals were adopted by the people.  Experts attribute this to the unfortunate decision of that convention to present its proposals for revision to the voters on an all-or-nothing basis.  Hopefully this mistake will not be made again. 

Combatting Entrenched Interests

A constitutional convention, designed to enable the public to overcome entrenched interests, will in all likelihood be opposed by those entrenched interests, including the Legislature. That’s precisely the situation that the Constitution anticipates by giving the public every 20 years the right to convene a constitutional convention.  All the entrenched interests will fight hard against a convention to preserve their prerogatives.  If a convention is ultimately called, they will also fight to elect Delegates willing to protect those prerogatives.  But for all of us a constitutional convention is a unique opportunity to secure needed change, and the election of Delegates committed to needed change has happened before and can be achieved again. 

Needed Constitutional Improvements 

Those supporting the call of a constitutional convention have an obligation to explain what changes they believe need to be taken up at a convention.  To kick off public debate on that need, a group supporting a constitutional convention has been meeting over the past several months to formulate such a list.  We come from across the State – Buffalo to Long Island – and bring decades of experience with New York state and local government, either through our work on reform, our public service or other professional interests.  We have decided informally to call ourselves the Committee for a Constitutional Convention.  All members do not necessarily agree with each potential constitutional change listed below, but all agree that each is worthy of discussion at a convention.  Here is our list.  It is not exclusive since other topics like the pros and cons of term limits will be debated if a convention is called.  But these are topics where the need for change seems most compelling and clear.
 

1.  Legislative Dysfunction and Corruption

The old adage, “If it’s ain’t broke, don’t fix it,” has no application to the New York State Legislature.  Our Legislature is beset by breaches of the public trust and 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.  The process is controlled by the “three men in a room” and is often closed to the public and minority party members..  There is no independent ethics enforcement, and the existing ethics body, JCOPE, is called “J-JOKE” in Albany.  New York’s election districts are grotesquely gerrymandered to assure reelection and maintenance of existing political party control.    
Needed changes:
  • Establish an effective ethics enforcement agency independent of elected officials’ control;
  • Shift the power to set campaign contribution limits from the Legislature to the new ethics enforcement agency; 
  • Limit outside income for legislators, which creates conflicts and is used as a vehicle to conceal corrupt payments and use public office for private gain; 
  • Shift redistricting power from the Legislature to the courts or an independent districting commission to end gerrymandering for incumbent and political party protection; 
  • Improve the opportunity for public and minority party input into the legislative process by expanding requirements that allow for public review of and discussion about proposed legislation.

2.  New York’s Flawed Electoral Process

Someone from Mars reading our Constitution would think we didn’t want people to vote.   Measures to make it more convenient to vote, such as those adopted in many other states (voting by mail and early voting, for example) are barred by our Constitution.  No wonder New York ranks 46th nationally in percentage voter turnout.
Needed changes: 
  • Eliminate constitutional bars to early voting and voting by mail;
  • Let government take the initiative in automatically registering voters;  
  • Make Boards of Election independent and supported by a non-partisan staff;
  • Encourage broader participation in choosing office holders including consideration of the California “Top Two” primary system.

3.   A Clean and Healthy Environment

The New York Constitution has provisions for conservation and protecting the forest preserve as “Forever Wild.”  Like the overwhelming majority of New Yorkers, we cherish this provision. However, the environment is mentioned only in the context of natural resource management, and no mention is made of climate change.  Other States have enacted an Environmental Bill of Rights to further secure a clean and healthy environment including clean water to drink and healthy air to breathe.
Needed change:
  • Extend to the environment the State’s existing constitutional commitment to conservation so as to ensure healthy air to breathe, clean water to drink and progress in addressing the causes and consequences of climate change. 

4.  Educational Opportunity

New York’s top Court has held that our Constitution guarantees every New York student a sound basic education through high school.  This promise of a free public school education is a basic to our State’s commitment to the future and therefore should be a top priority.  However, the cost of providing such a sound basic education, which should include the opportunity to be ready for college or other advanced training for a career, is not being met in every part of the State.  As a result, some public schools, particularly in economically depressed areas, are seriously inadequate.  Also our Constitution makes no mention of higher education, which is essential for many careers in the 21st century.   
Needed changes:  
  • Better secure in every community 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. 

5.  Civil Rights Protection

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.”
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This strong-seeming provision, however, is illusory.  New York courts have refused to make it enforceable.  In 1949 New York’s highest court ruled that because the provision is not self-executing[1] the Metropolitan Life Insurance Company, which owned the Stuyvesant Town complex of rental apartments, was entitled without violating this provision to enforce an openly declared policy of not renting to African Americans.  The provision also is too narrow.  It is limited to barring racial and religious discrimination.  Today we recognize the wrongfulness of other forms of public and private discrimination. 
Needed change:  
  • Make the Civil Rights provision in our Bill of Rights enforceable and expand its scope, now limited to race and religion, to address other forms of discrimination that prevent equal opportunity for all New Yorkers. 

 6.   Social Welfare  

In 1938 New York amended the Constitution to charge the Legislature to care for the needy.  This is an area in which New York has long led the way. Today, however, the middle class also faces increasing problems with the affordability of goods and services needed for a basic standard of living.  These affordability issues are particularly acute when lack of affordability threatens especially grave harm.  One clear example of this situation is basic health care coverage which is unaffordable for many.  Another example is the inability to afford counsel to defend against grave threats such as an eviction threatening homelessness or domestic violence in a marriage or other relationship.
Needed change:
  • Expand the Constitution’s call to the Legislature to care for the needy to include situations where lack of affordability for the middle class threatens especially grave harm. 

7.  Local Control

While our Constitution lays out the home rule powers of local governments and purports to protect them against special state legislation, these provisions have been weakened by judicial decisions.  The Legislature has also seen fit to impose many mandates on local governments without providing the funding needed to carry out those mandates.  To avoid tax increases, localities then have to reduce spending for local priorities.
Needed changes:
  • Make unfunded mandate legislation hard to pass by requiring heightened local fiscal impact analysis and ample opportunity for community input;
  • Strengthen local legislative autonomy by limiting state preemption;
  • Strengthen the requirement for a Home Rule Message before enacting legislation aimed at a particular local government.

8.  Court Reform

The Judiciary Article of our Constitution, which runs to over 16,000 words, has four major flaws.  First is the staggering and outdated complexity of our judicial system.  Second, while we pretend to elect Supreme Court judges under the Constitution, in reality they are most often picked by party leaders.  Third, all intermediate appellate court judges must be chosen only from among the elected Supreme Court judges.   Excluding other judges and non-judges from the pool that can be considered prevents consideration of many well-qualified candidates.  Finally, the Constitution organizes the State into four Judicial Departments, each of which has an intermediate appellate court.   Four such courts do not provide sufficient coverage, and delays result.  California, for example, has six intermediate Courts of Appeal.   
Needed changes: 
  • Consolidate our outlandishly complex court structure;
  • Abolish judicial selection by political party leaders;
  • Expand the pool of candidates eligible for appellate court appointment;
  • Increase the number of intermediate appellate courts.

Conclusion

We believe that a constitutional convention should address needed changes in the areas we have identified.  These changes will make a real difference for a better New York.
 

 

 

 



[1] I.e., it does not provide a mechanism for implementation or enforcement.

 

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  • commented 2017-11-02 21:16:19 -0400
    I think, reforming your way to vote (Voting system) by Constitutional amendment should go first before replacing Top-Two because it’s wouldn’t help any third parties except clearly help two corrupted parties in this system.
  • commented 2017-10-11 08:07:25 -0400
    don’t listen to conservative lies…this is not about having a party, they lie as they want to keep us gerrymandered
  • posted about this on Facebook 2017-08-20 11:52:38 -0400
    Get ready to vote yes in November on NYS Constitutional Convention! Fix NYS gov't, structural changes to decrease corruption, and undermine IDC's dirty game

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