Constitutional Convention "Bootcamp" - The Change Process
Shall there be a convention to revise the constitution and amend the same? -Article XIX.2. THE 50 GROUP FEBRUARY 1, 2016 GERALD BENJAMIN NYS Constitution New York Must have a referendum asking citizens whether they wish to hold a constitutional convention every 20 years. No action by the governor or legislature is required. The next scheduled vote on this question will be on November 7, 2017 2 Benjamin Center - SUNY New Paltz 02/12/202 0
A Constitutionally Mandated Referendum Vote .[A]ll power is preserved to the people[We propose this so that] once every 20 years they might take the matter[of how they are governed]into their own hands Ansel Bascom, Delegate from Seneca County, 1846 NYS Constitutional Convention [W]ithout the intervention of any other body [I]f they were dissatisfied with the constitution, the people could say so and act accordingly, and if not, the existing constitution would be continued. Richard Marvin, Delegate fro Chautauqua County, 1846 Constitutional Convention 3 Benjamin Center - SUNY New Paltz 02/12/202 0 Why do we have this mandatory referendum question requirement? A reminder to pay attention
Do you: Ignore it? Bring the car into the garage for a look, and then: Decide to do nothing? Get a tune up? Authorize major service? Replace the engine? Or get a new car? 4
Benjamin Center - SUNY New Paltz 02/12/202 0 The state government dashboard warning light Is not an add on Is built into the system But you only notice that it is there when it comes on, or stays on 5 Benjamin Center - SUNY New Paltz 02/12/202 0 The state constitutional change referendum process, like your cars warning light The Mandatory Convention Question Vote is Unfamiliar Many people do not know there is a state
constitution The statewide referendum process has only limited use in New York State Approving amendments proposed by the legislature Authorizing full faith and credit borrowing The opportunity to vote on this question occurs once every generation. Therefore, citizens get to make this choice only three or four times in a lifetime Benjamin Center - SUNY New Paltz 02/12/202 0 6 ConCon Vote Remains Mystery for Vast Majority; Support for ConCon
Weakens, Still Strong Sienna Poll October 26, 2015: More than 70 percent say they have heard nothing at all about the 2017 vote on whether New York should hold a Constitutional Convention, While support for a ConCon remains very strong, 60-25 percent, it is down from July when support was 69-15 percent. State Constitutional Conventions are not uncommon Benjamin Center - SUNY New Paltz 02/12/202 0 There Have Been 146 State Constitutions in force over the course of U.S. history Only two state constitutions currently in force (Massachusetts and New Hampshire) were adopted prior to the U.S. constitution New York has had 9 conventions and 4 constitutions. The current NY constitution, adopted in 1894, was given major revision in 1938 8
The last state constitutional convention was held by Rhode Island in 1986. New Yorks last convention was held in 1967 In the mandatory referendum votes of 1977 and 1997 New Yorkers decline to call a convention The period between 1967 and today is the longest in state history without a constitutional convention 9 Benjamin Center - SUNY New Paltz 02/12/202 0 But lately states have displayed convention-phobia Comparative research by Professor John Dinan of Wake Forest University of all the states with
mandatory convention question provisions in their constitutions shows that two key factors in making a positive referendum outcome more likely are: Gubernatorial leadership Advance research and preparation The Political Dynamics of Mandatory State Constitutional Convention Referendums: Lessons from the 2000s Regarding Obstacles and Pathways to their Passage, Montana Law Review 71 (Summer 2010): 395-432 . 1 0 Benjamin Center - SUNY New Paltz 02/12/202 0 Gubernatorial leadership and preparation From ethics enforcement to the basic rules governing day-to-day business in Albany, the process of government in New York State is broken.
Governor Cuomo believes a constitutional convention offers voters the opportunity to achieve lasting reform in Albany. The Governor will invest $1 million to create an expert, non-partisan commission to develop a blueprint for a convention. The commission will also be authorized to recommend fixes to the current convention delegate selection process, which experts believe is flawed. 1 1 Benjamin Center - SUNY New Paltz 02/12/202 0 State of the State Message January, 2016 A Constitutional Commission is proposed by Governor Cuomo to prepare New Yorkers for this referendum Why a phobia? The idea of changing a constitution is scary (association with the national constitution)
The process is thought to be flawed, thus: We dont know who will recommend changes Bad things may happen Nothing may be achieved, at high expense The things about how state government works that we dont like cant be fixed this way We have more focused ways to make constitutional change (through the legislature) Benjamin Center - SUNY New Paltz 02/12/202 0 1 2
What is in the constitution now? Predicting from experience Constitutionally mandated processes Statutory processes in place What should/will be removed or modified? What should/will be added? 1 3 Benjamin Center - SUNY New Paltz 02/12/202 0
The risk benefit calculation [M]any state constitutions [are] baroque collections of essentially statutory material Federal Judge J. Harvie Wilkinson III Words State NY average 26,721 words (2009) 51,700 words (11th longest) U.S. 8,160 words (including amendments) Provisions State NY average number 828 1093 Constitutional Length Statutory Material New York is typical in that about a third of the provisions in its State constitution are devoted to statutory type matters. Christopher Hammons. Was James Madison Wrong? Rethinking the
American Preference for Short, Framework Oriented Constitutions 93 APSR 837, 840 (1999). Many processes are constitutionally specified The question used to call a convention does not allow its agenda to be limited Three delegates must be elected from each State Senate District and fifteen at large statewide Partisan Bias Voting rights Act concerns Voting technology Delegates must be compensated at the same rate as members of the Assembly
Double dipping Use of the capitol 1 6 Benjamin Center - SUNY New Paltz 02/12/202 0 Process 19th Century solutions 21st Century problems Restricting eligibility to serve as delegate Sitting legislators Sitting judges Others
Do we use existing election law for: Nomination of candidates for delegate? Campaign finance for delegate elections? 1 7 Benjamin Center - SUNY New Paltz 02/12/202 0 Processes Issues Statutory Are the things New Yorker say they care about constitutional issues? Voter Priorities - Sienna poll February, 2016 Education Jobs Taxes
State Government Ethics Infrastructure Health Care Criminal Justice Reform Benjamin Center - SUNY New Paltz 02/12/202 0 1 8 Amendment or revision The legislature is a locus of self interest
The institution The conferences The members It has demonstrated unwillingness to alter the fundamentals of government through constitutional amendment, except to benefit itself (e.g. attempt to change the Budget process) Consider redistricting reform 1 9 Benjamin Center - SUNY New Paltz 02/12/202 0 The lesson of constitutional change through the legislature
Was it a failure? Rejected at the polls Results Offered in one question But what was in it? Did it cost too much? Was it dominated by legislators? Judges? The political class? All of the above? 2 0 Benjamin Center - SUNY New Paltz 02/12/202 0 The lessons of the 1967 convention
What would be different if the proposed 967 Constitution were adopted? - 1 1. There would be a five member commission redistricting the state legislature and Congress, chaired by an appointee of the Court of Appeals. Membership by legislators would be barred. Gerrymandering for any purpose would be prohibited. 2. The would be a constitutional requirement for fair districting in New Yorks local governments 3. There would be 60 members of the state Senate. The number would be fixed. 4. All public assistance and Medicaid costs not paid for by the national government would be borne by the state budget. There would be no mandated local share. 5. There would be explicit state constitutional protections against discrimination on the basis of age, sex or physical or mental handicap. 6. A constitution prohibition of aid to parochial schools (the Blaine Amendment), since rendered largely ineffectual, would no longer be in the state constitution, replaced by the language of the First Amendment to the United States Constitution
7. A citizen would be constitutionally protected in his or her right to sue the state if he or she thought it was spending money unconstitutionally. This provision was deemed to include the right of citizens to sue for violations of the forest preserve provisions. 8. State and local governments community economic development responsibilities would not be in question, but would be constitutionally specified, supported and legitimized. Benjamin Center - SUNY New Paltz 02/12/202 0 2 1 9. The popular referendum requirement for the approval of state debt would not exist, though there would be a constitutional debt service limit, inked to general revenue receipts, on aggregate state and public authority debt. 10. Public higher education would have constitutional status. The State University of New York and City University of New York would be specifically recognized.
11. Electronic eavesdropping or surveillance for law enforcement purposes would be explicitly constitutionally limited. 12. There would be an explicit state constitutional guarantee of the right to counsel at every stage of the proceeding in all criminal matters. 13. There would be a constitutional guarantee of openness in state government. 14. Unfair, inequitable or dishonest sales, marketing and financing practices would be constitutionally specified as a matter of state concern. 15. The governor would have constitutional authority to reorganize state government, subject to legislative veto. 16. Vacancies in state elective offices would be filled by election as soon as practicable after they arose. 2 2
Benjamin Center - SUNY New Paltz 02/12/202 0 What would be different? -2 17. The state court system would be better structured and organized, with judicial staffing more responsive to need and workload. 18. District courts would be a viable option for counties outside New York City. 19. There would be a constitutional basis for procedures for administrative rule making and adoption. 20. More equitable assessment of real property for taxation, with a viable option of moving the function to the county level, would be constitutionally based and encouraged. 21. While the Adirondack and Catskill Preserves would remain forever wild, localities within the blue lines would enjoy the same capacity for home rule without amending the state constitution as do places elsewhere in New York.
22. It would be the constitutionally-based policy of the state to to conserve and protect its natural resources and scenic beauty and encourage the development and improvement of its agricultural lands for the production of food and other agricultural products. The legislature, in implementing this policy, would be constitutionally directed to make adequate provision for the abatement of air and water pollution and of excessive and unnecessary noise, the protection of agricultural lands, wetlands and shorelines, and the development and regulation of water resources. 23. Unless overcome by later litigation based upon the U.S. constitution, New Yorkers would vote where they were domiciled, with domicile defined in the constitution. 2 3 Benjamin Center - SUNY New Paltz 02/12/202 0 What would be different? -3 24. There would no longer be an affirmative constitutional obligation of the state to aid the needy. However, Article I, 10a states that It shall be the policy of the state to foster and promote the general welfare and to establish a firm basis of economic security for the people of the state. Article XII, 12.a.notes that economic and community development purposes shall include the renewal and rebuilding of communities, the development of new communities, and programs and facilities to enhance the physical environment, health and social well-being
of, and to encourage the expansion of economic opportunity for, the people of the state. 25. Claims against the state would no longer be time bound. (Art. III, 5e) 26. Equality of educational opportunity would be guaranteed to all the people of the state. 27. State aid to school districts would be based on registration rather than attendance and would consider the special educational needs, if any, of the students in each district and the total local tax burden of the taxpayers of each district. 28. Defendants would have a right to a jury trial for offenses punishable by a term of imprisonment of more than six months. 29. Judges would be permitted to dispense with bail for non-capital offenses if the court is reasonably satisfied that a defendant will appear when directed. 2 4 Benjamin Center - SUNY New Paltz 02/12/202
0 What would be different? -4 30. The addition of public campsites of the kind presently constructed and maintained, and in areas similar to those in which they are presently located, would be permitted in the forest preserve. 31. The welfare of the child would be the primary concern in determining adoption or guardianship decisions. Article V, sec. 27. 32. Discrimination in the admission to any school receiving public funds would be prohibited. 33. Equality of educational opportunity would be guaranteed to all the people of the state. 34. The Public Service Commission would have four members appointed by the governor and three members elected by the legislature sitting in joint session.
35. Registration rather than attendance would be the basis of apportioning state aid to school districts. 2 5 Benjamin Center - SUNY New Paltz 02/12/202 0 What would be different? -5 What to put in, what to remove, There is no consensus on an agenda Think about Election administration Districting
Campaign finance Separation of powers (Balance in budgeting) Home rule Removing dead letter law Benjamin Center - SUNY New Paltz 02/12/202 0 what to leave unchanged? 2 6 At least six weeks must pass before any vote on the conventions work The constitution gives the convention
discretion in presenting it work At a time of its choosing ( A special election is possible) In a single question In a number of distinct questions 2 7 Benjamin Center - SUNY New Paltz 02/12/202 0 A Final Referendum - Voter ratification of the conventions recommendations To call a convention To elect delegates
To ratify the results of the convention 2 8 Benjamin Center - SUNY New Paltz 02/12/202 0 So there are three votes that must be yes to change the constitution by referendum: Process reform as a condition of holding a convention By statute requires legislative action By constitutional amendment Must be passed this hear and again in 2017 Will be on the ballot at the same time as the convention call vote Benjamin Center - SUNY New Paltz 02/12/202 0
2 9 The Convention Catch 22 The legislature can block process reform, and therefore support for a convention conditioned on it, by doing nothing Thus passive aggression by the legislature suborns a process designed to bypass it. Benjamin Center - SUNY New Paltz 02/12/202 0 In a process designed to bypass it and the governor: 3 0 If the voters call for a convention
Litigation will ensue on delegate selection Process remedies adopted by the legislature will preempt their imposition by a Federal Judge 3 1 Benjamin Center - SUNY New Paltz 02/12/202 0 Process reform A consequence of, not a condition for calling a convention
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