Why You Should Vote NO On a Constitutional Convention

Categories Politics

On November 7, New York voters will be asked a question that’s asked of voters every 20 years: “Shall there be a Convention to revise the Constitution and amend the same?” If a majority of voters vote “yes,” New York voters will select delegates on Election Day 2018. The convention will be held in 2019. If voters vote “no,” the question goes away until it’s asked next in 2037 and there will be no “ConCon” in 2019.

TruthSayers asked around among its politically aware contacts for some informative articles both supporting and opposing a Constitutional Convention. Yesterday, we ran an article by Emily Adams, co-chair of Tompkins County Progressives, explaining her reasoning behind a “yes” vote – which you can read by clicking on this here hyperlink. Today, we’ll run an article by John O’Malley, legislative coordinator of CWA Local 1180, explaining why he’s voting no on Proposal One.

If you have an opinion you’d like to share about the Constitutional Convention or any other question on the ballot this year, contact TruthSayers editor Josh Brokaw at josh.brokaw@truthsayers.org.

The argument against a ConCon

By John O’Malley

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?

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Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy, via Wikimedia.

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.

John O’Malley, CWA 1180 legislative coordinator. Photo provided.

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 reduction 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 10,000? 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 204 delegates and 10,000 engaged people 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.

A disclaimer from O’Malley:

I am the Legislative Coordinator of CWA Local 1180 in New York City, which is an affiliate of New York Progressive Action Network [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 here are my own, not those of NYPAN.

Featured photograph: New York State Capitol. Photo by Matt H. Wade CC-BY-SA-3.0/Matt H. Wade at Wikipedia

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