Gotham Gazette Sun, 22 Oct 2017 13:49:36 +0000 Joomla! - Open Source Content Management en-gb (Webmaster) What’s The [DATA] Point? 1936 whats the data point

What’s The [Data] Point? Episode 16 - 1936, with Gerald Benjamin of SUNY New Paltz  [You can download What's The [Data] Point? wherever you get your podcasts, including on iTunes]

geraldbOn Election Day, November 7, New Yorkers will be asked whether the state should hold a constitutional convention. It is a quesion that appears on the ballot every 20 years, mandated by the current constitution, and allows voters to simply answer "yes" or "no." Gerald Benjamin, a distinguished scholar from SUNY New Paltz and proponent of calling a convention, joined the podcast to discuss the controversial topic that has many in New York focused on either securing approval or voting it down. The data point, 1936, was the last time New York voters approved a Con Con, as it is often called. Benjamin believes this is the year the "yes" side could win again, and he explains both why New Yorkers should vote in favor and many of the issues surrounding the question.

Listen to the conversation and let us know what you think: Ben Max of GG (@TweetBenMax) & CBC (@cbcny) Listen below or download wherever you get your podcasts!

by Ben Max, Gotham Gazette

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What’s The [DATA] Point? 1936 Thu, 19 Oct 2017 04:00:00 +0000
There Will Be Three Big Questions on Your Ballot in November voting election ballot proposals

Voting (photo: Samar Khurshid/Gotham Gazette)

A state constitutional amendment slightly loosening stringent environmental protections in the Adirondacks and Catskills in certain cases will be on the ballot this fall, the state Board of Elections announced this week.

The legislation, which has passed through two consecutive sessions of the Legislature in order to make it onto the ballot, allows for select infrastructure projects deemed necessary for the safety and economic vitality of nearby areas to be installed without a constitutional amendment.

It is the third referendum that will to be presented to voters on Election Day in November. Along with candidates for office, there will be three “yes” or “no” questions on voters’ ballots. The measure related to some building in the Adirondacks and Catskills will be number three, after a question of whether New York should hold a constitutional convention and whether pensions should be stripped from elected officials convicted of public corruption.

Currently, the New York State Constitution’s “forever wild” clause, which protects the state forest preserve as wild forest land, prohibits the lease, sale, exchange, or taking of any forest preserve land. For counties and townships in the relevant regions, road and bridge repairs and the installation of things like bike paths, broadband internet, or a water well infrastructure that cut into the surrounding forest preserve would require a constitutional amendment -- which takes a minimum of two years, involving double passage by the state Legislature and then approval from voters.

The sluggish process of critical projects has created safety concerns and hampered economic growth in New York State’s North Country, according to a spokesperson for state Senator Betty Little, a Republican from Queensbury County who sponsored the bill.

"The impetus for doing this amendment is to enable a very, very small category of projects to move forward without, in every instance, amending the constitution," said Daniel MacEntee, Little’s press secretary. “The North Country can't afford to be left behind. If there was better connectivity, it would be very beneficial to the economy, health, and safety of the region,” he added.

If the amendment passes, the state will create a “land account,” or up to 250 acres of forest preserve land surrounding county and town highways that can be encroached on for select projects. A town, village, or county can apply to the land account if it believes it has no viable alternative to using forest preserve land for certain limited health and safety purposes on or near major thruways.

Projects concerning the safety of bridges; the elimination of dangerous highway curves; relocation and maintenance of roadways; and the construction of water wells within 530 feet of a major highway, in order to meet basic drinking water quality standards, are all covered under the first exception.

The proposed amendment, sponsored in the state Assembly by Democratic Assemblymember Dan Stec, would also allow bicycle paths and specified types of public utility lines (including high speed internet), to be located within the widths of state, county, and certain town highways that traverse forest preserve land -- as long as there is minimal removal of trees and vegetation.

While the ammendment past during the normal legislative session, state lawmakers passed the enacting language for the amendment in June, when the Legislature reconvened in a special session to extend mayoral control of New York City schools and pass other measures. If New Yorkers vote in favor of the ballot measure on November 7, it will be enacted immediately.

The measure, which has been years in the works, has widespread approval from elected leaders, stakeholders, and environmental agencies, and Senator Little is optimistic that it will be passed on Election Day, according to MacEntee.

While environmental groups have historically resisted constitutional scale-backs of the “forever wild” provision, the state’s Department of Environmental Conservation and the governor’s office were heavily involved in drafting the legislation, according to Assemblymember Steve Englebright, chair of the Assembly’s Environmental Conservation Committee.

Englebright noted that the legislation is based on a similar constitutional amendment made for state highways, which designated 400 acres of land for such restoration projects. Based on the pace of utilization from that land pool, the 250 acres of land is expected to last at least half a century, according to Englebright.

“This is not a short-term project,” said the assemblyman. “It’s meant to be an ongoing mechanism to enable the people who use the roads, need to access part of the road network, make use of communication devices on those roads, or need to drill a well nearby -- they can do that without going back to every voter in the whole state. It will simplify life in the Adirondacks, and it sends a message that we honor and respect the well-being of the people who live there.”

Two other questions, one asking voters to decide on whether to hold a convention to amend the constitution, and an ethics measure to strip pensions from a public officer that has been convicted of a crime related to his or her official duties, will also be on the ballot in November. The outcomes of all of these questions will be heavily influenced by New York City voters, given that the city is such a population center and is holding a mayoral election, as well as many others for City Council and other offices. While turnout is expected to again be low, it will account for a significant portion of the total, along with those voting in local elections elsewhere across the state. There are no statewide elections this year, though, other than the ballot questions.

The second and third questions, as constitutional amendments, have passed the Legislature twice, and have been rigorously vetted by elected officials, advocates, and other stakeholders.

Aside from the convention question, the two pieces of legislation touch on larger reforms proposed by advocates of a constitutional convention: ethics reform and strengthening home rule.

The Con Con question, though facing a more uncertain future, poses a unique once-in-a-generation opportunity to dramatically overhaul the state’s lengthy and outdated constitution. Proponents say it can, among other things, be used to enact term limits for elected officials, improve the state’s courts system, create a strong system for legislative redistricting, and enact significant campaign finance reform.

While the referendum on holding a constitutional convention is posed to voters once every 20 years, New Yorkers voted down the measure in 1997, and it faces strong opposition from certain interest groups including environmentalists who are worried about preserving the “forever wild” law in its original form and labor unions who want to protect organizing and pension provisions.

It is unclear how sharing the ballot with two other questions will impact the constitutional convention vote, and vice versa. Gerald Benjamin, a SUNY New Paltz professor and longtime advocate for a constitutional convention, said he believes the other two questions will be overshadowed by the debate over the convention, which is heating up.

“The driver is going to be the Con Con vote,” said Benjamin. “You are getting an elevated attention to referenda, which is uncommon in New York. So you are expanding the electorate for the other two, potentially.” Groups are beginning to spend heavily to raise awareness about the convention questions and push their preferred vote.

However, the other two amendments may fuel arguments by opponents of a convention -- including one made by both legislative leaders -- that tweaks to the constitution can be done slowly over time, through amendments.

Benjamin said that this argument is specious, because the use of constitutional amendments as a legislative fix has grown less frequent, and when it is used, the matters that do get changed are small.

The amendment related to forest preserves expressly does not permit the construction of new intrastate gas or oil pipelines that did not receive necessary state and local permits and approvals by June 1, 2016.

by Rachel Silberstein, State government reporter, Gotham Gazette

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There Will Be Three Big Questions on Your Ballot in November Thu, 03 Aug 2017 04:00:00 +0000
Delegate Election Date Should Sway Progressive Con Con Opponents State Senate Chambers New York

(photo: JvL via Flickr)

My union member father recently asked me how New Yorkers on the left can possibly want a state constitutional convention, for which a referendum will be on the ballot this November. After all, the roster of opponents includes organized labor, environmental groups, the executive director of the New York Civil Liberties Union, and the vast majority of New York’s elected Democrats.

These progressives have reasonable arguments against a constitutional convention, or “con con,” which will only happen if a majority of voters votes for the referendum in November. They worry about constitutional pension protections and the “forever wild” language that safeguards New York’s forest preserves from development. They cite the obstacles the left would face during delegate elections in November 2018, which would determine who drafts constitutional amendments: first, dark money from wealthy interests could crush good candidates, and second, delegates would be elected by state Senate districts, which are gerrymandered to favor Republicans. A skeptical policy wonk friend of mine has also pointed out that the most recent state con con that produced a progressive victory was Montana’s -- in 1972.

These concerns are valid, yet now is the moment to take this risk. If voters across the state favor a con con this November, then delegate elections would be on the same ballot as the federal congressional midterm elections in 2018. We cannot pass up this serendipitous timing.

The left’s first lucky draw is that 36 of the past 39 midterm elections have resulted in losses for the party that holds the White House, currently the Republican Party. Second, while we’re still a long way from November 2018, I wouldn’t bet on this likely Democratic win being small. Donald Trump is uniquely unpopular for a President at this point in his term, Republicans – independently of the president – are rallying around a health care bill that, in the last version scored by the nonpartisan Congressional Budget Office, will result in 15 million fewer people having health insurance, and the left’s grassroots are ready to storm the figurative Bastille.

To reinforce this point, con con delegates would be elected on the very same ballot people will use for the November 2018 congressional midterms. The left is going to swamp the polls. When Long Islanders just swung a state Assembly seat nearly 20 points away from November’s Republican vote, we can have some faith that progressives will show up in force for federal elections.

Heightened voter turnout can overcome many of the fears progressive con con opponents have, but there are other reasons to be optimistic regarding the structural disadvantages the left will face. True, if the con con referendum passes this November, three delegates would be elected per gerrymandered state Senate district. But Hillary Clinton managed to win 40 of 63 of these districts and there will be 15 more at-large delegates elected by statewide vote. This slate would likely have a leftward tilt from the aforementioned Democratic surge.

Albany is broken. It would be wonderful to have progressive policies enacted through normal legislative channels, but New Yorkers know that won’t happen. Even when corruption scandals aren’t rocking our Legislature, decisions are made by three – or four, thanks to the Independent Democratic Conference – men in a room who refuse to advance many progressive priorities.

The amendments con con advocates are pushing vary. Some supporters want “good government” changes that will make it easier to vote and improve campaign financing and redistricting rules. After enacting these reforms, progressive change could happen organically through a more representative and better functioning Legislature. The theory goes that constitutional amendments in this vein would be nonpartisan and Republicans who care about small-d democracy will get behind them.

Other con con proponents want to embed policies in the state constitution itself, whether on reproductive rights, enhanced civil rights for nonwhite and LGBTQ people, marijuana legalization, or an environmental bill of rights that will prevent a future disaster like what befell Hoosick Falls. They note that those pension and state forest protections opponents fret over were themselves enshrined in a constitutional convention. There are solid arguments in favor of either strategy.

I have heard con con believers describe this as a once-in-a-generation chance to systematically change the way state government works, but they’re wrong. They’re actually overstating the odds that we’ll see another opportunity like this in two or four decades when the next con con referendums roll around. We have a historically unpopular Republican government in Washington and an extraordinarily animated grassroots. Take advantage of this rare convergence. This November 7th, vote “yes” for the constitutional convention.

Daniel Edelman is a government consultant and a member of the New Kings Democrats and Citizens Union, two civic groups in favor of the Constitutional Convention. The views expressed are his own.

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Note: Gotham Gazette is an independent publication of Citizens Union Foundation, sister organization of Citizens Union. ]]>
Delegate Election Date Should Sway Progressive Con Con Opponents Thu, 13 Jul 2017 04:00:00 +0000
What’s a Constitutional Convention Cost? We Can’t Afford to Not Hold One capitol via nyscapitolvisit

the Capitol, via @NYSCapitolVisit 

When asked what a state constitutional convention might cost if called by voters in 2017, I said at a State Bar Association panel event that I had applied the Bureau of Labor Statistics CPI inflator to what I then thought was the 1967 convention’s cost and got $47 million. Casey Seiler of the Albany Times Union was there. He did not hear or realize that I had adjusted for inflation, so he used the $47 million figure as the cost of the 1967 convention. This led others to then adjust for inflation based on that number, leading to the proliferation of a faulty projected cost of $350 million, immediately seized upon by convention opponents. (Seiler later published a correction.)

The Public Employees Federation wrote: “Experts estimate a constitutional convention would cost hundreds of millions of dollars.” Senator Majority Leader John Flanagan used it as evidence that a convention would be outrageously expensive, with no “guarantee” of any positive result. The wildly wrong number repeatedly popped up in media outlets all over the state. Even after shown the error of their ways in debates, opponents were loath to give up this ‘alternative fact.’ All of this was chronicled by Bill Mahoney as an urban legend in Politico New York.

Since then a leading convention advocate, Chris Bopst, went back to the state comptroller’s actual spending records. He found that between 1967 and 1971 a total of $7,580,885 was spent on preparing for and conducting the last constitutional convention. Of this, $527,051 ($3,977,673 in 2017 dollars) was for a preparatory commission. We haven’t had one of those this time; the Legislature killed it. This leaves $7,053,834, spent over a total of four years. In 2017 dollars this is $51,448,160, not far off (8.6%) from my original more-or-less shot in the dark of $47 million.

There’s no telling if the cost of the 1967 convention is a good guide for what a convention would cost if held today. After all, 1967 was half a century ago. (It’s the longest time since a constitutional convention was held in New York State history.) Some say that a better estimate is this year’s budget for the Legislature’s larger house, the Assembly. That roughly doubles the number, bringing it to $105.4 million.

One big thing is being missed: a major expense of the convention, the cost for delegates’ pay, would likely be lower in real terms this time around. The reason? Each delegate must be paid the salary of an Assembly member, and legislative compensation has gone up since 1967 far more slowly than the rate of  inflation.

In 1967 there were 186 delegates; each was paid $15,000. Total delegate costs were therefore $2,790,000, just short of 40% of the convention’s overall cost. At the next convention, if it is authorized, there will be 204 delegates (three from each Senate district – there are now 63, not 57 – and 15 at large). Unless there is a legislative pay raise, each will earn $79,500. The total payroll for delegates will thus be  $16,218,000. This is 29.8% of the current-dollar cost of the 1967 convention, and 15.4% of the 2017 Assembly budget.  

At this potential level of cost, is a convention worth it? A comparison, albeit imperfect, suggests itself.

Successful businesses regularly reorganize, merge, or acquire companies to increase profitability by becoming more efficient, managing scale, and consolidating strengths. A close friend on Wall Street estimated the bankers’ costs of a $50 billion acquisition to be somewhere around .50% of enterprise value – lawyers of course are extra! The New York state budget is $153.1 billion. If we use $105 million as the high end constitutional convention cost – we arrive at a “reorganization “ cost that is .001% of the state’s annual budget.

Corporate reorganizations, mergers, and acquisitions are pursued because the benefits are expected to exceed the costs and to accrete over the long term. Not all benefits, of course, can be defined with a financial value. The gains a convention would likely produce in democratic accountability and good government are potentially enormous, but hard to monetize. However, think of this: One 2007 study estimated that a  thorough reorganization of New York’s courts, sought for decades and recently said by the State Bar Association to be possible only through a constitutional convention, would save over $500 million ($600 million in 2017 dollars). That’s six times the high end cost of a convention in 2017.

What do these numbers tell us? It’s a no brainer. We cannot afford to not hold a constitutional convention.

Gerald Benjamin is director of The Benjamin Center at SUNY New Paltz.

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What’s a Constitutional Convention Cost? We Can’t Afford to Not Hold One Tue, 04 Jul 2017 04:00:00 +0000
Reform Will Only Happen Through a State Constitutional Convention Cuomo Silver Skelos ethics reform

(photo: The Governor's Office)

Albany ended the legislative session without any government ethics reform and without any voting reform. Although there have been fewer arrests for corruption this session than last, no legislator should take this as a sign of improvement. And New York State voters should accept the truth that the Legislature itself will never seriously vote against its members’ self-interest to make progress on ethics or electoral reform.

The only opportunity for New Yorkers for real reform is on the ballot on November 7, 2017, where we will be able to vote “yes” for a State Constitutional Convention.

This year, some state legislators talked about passing voting reforms in our archaic, closed system, such as early voting, reducing the time required to switch parties, and same-day registration, but none happened. This legislative session we heard calls for closing the LLC loophole, fixing pay-to-play allowances, and eliminating “lulus” -- stipends that go to legislators, sometimes for work they don’t actually do.

The response to the news that almost all State Senators receive these lulus, or extra committee or conference leadership stipends, regardless of whether they are actually leading any committee, has been lackluster. The State Senate, for the first time in eight years, convened its ethics committee on June 15, less than a week before the end of the legislative session. It decided to table the lulu issue, who knows until when.

There will be a chance to make constitutional reform on the ballot this year aside from the Con Con. The one reform voters have the opportunity to enact is to revoke the pensions of legislators convicted of a crime, and that’s only because it was the singular outcome of legislators responding to the anger of voters over the corruption scandals that took down two legislative leaders in one year and have plagued the capital for decades.

One worthwhile result with a slew of problems brewing should not be taken as sufficient for voters in the state. Voters should enact the pension-stripping measure and also vote for a Constitutional Convention.

To be sure, a Constitutional Convention should not be a second way to legislate. Many different interest groups will try to use the Constitutional Convention to effect their legislative goals, such as the legalization of recreational marijuana, banning abortion, or creating a road to upstate secession. However, the one problem that a majority of constitutional delegates and eventually New York voters can agree on is that the years of legislative sclerosis are a systemic problem that the State Constitution could fix. Moreover, legislators themselves will not legislate their way into solving those problems, even if there is a switch in partisan power.

Saying yes to a Constitutional Convention is worth the fight. The delegates could draft a new and improved version of the state’s democratic system, which would then be put to the voters. New York voters are smart enough to reject changes that merely reinforce the status quo or do damage to our civil rights. The opportunity to vote yes for a Constitutional Convention every 20 years is a deliberate acknowledgment from the state Constitutional framers that politics will sometimes overwhelm the legislative process. The lawmakers will not fix the problems on their own, the people must do it.

On November 7, vote “yes” for a Constitutional Convention.

Richard Semegram is tenant lawyer based in Brooklyn. On Twitter at @richagram.

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Reform Will Only Happen Through a State Constitutional Convention Mon, 26 Jun 2017 04:00:00 +0000
10 Bold or Bizarre Proposals for a New York Constitutional Convention voting constitutional convention

When New York voters head to the polls on November 7, Election Day, printed on their ballots will be the question, “Shall there be a convention to revise the constitution and amend the same?”

A "yes" vote would trigger a state constitutional convention process that could lead to major changes to the New York constitution.

While the first New York Constitution dates back to 1777, the version used today was adopted in 1894, with significant modifications made following the 1938 constitutional convention. Of those in support of a convention, some simply want New Yorkers to have the chance to debate key aspects of the antiquated, 52,500-word document, while others have clear policy agendas, like government ethics reform. There are many more mainstream ideas being discussed, but also a variety of more radical proposals that could be on the table if a convention were to be called.

The debate over whether to support a “yes” vote for a convention largely revolves around the potential to enact long-sought policy measures lawmakers seems unwilling to implement versus fears that hard-earned protections could be dismantled.

Advocates of various political affiliations see the constitutional convention as an opportunity to push for changes to redistricting, campaign finance, and term-limits for legislators -- not to mention a comprehensive rewrite of the at-times illegible constitution document that has many vestigial pieces.

At the same time, many labor unions and leading lawmakers are voicing their opposition to a convention. Of Albany’s five legislative conference leaders, only Assembly Minority Leader Brian Kolb has consistently backed a convention. Governor Andrew Cuomo has said he supports holding a convention, Mayor Bill de Blasio has said he does not.

Due to the democratic nature of a convention, people from all over the state and across the political spectrum frustrated by a lack of movement on their priorities in Albany are seizing on the opportunity to promote their causes, and are considering running their own delegates -- representatives will be elected in 2018 if a convention is approved this November.

Often, proposed constitutional amendments are framed in terms of “rights,” as in the right to clean air, the right to clean water, the right to hunt or farm, the right to equal treatment, the right to have a pension, and so on. Also being introduced, though, are some more unorthodox, even seemingly outlandish constitutional changes, like legalizing recreational marijuana, a dramatic restructuring of the state Legislature, or the splitting up of New York State.

Organizations (and individuals) pining for a convention are not necessarily powerful or well-funded -- anyone with internet access can start a political action committee -- and more radical proposals would be likely be countered at a convention by moderates with other priorities or competing interests.

The multi-phase process is also designed to prevent the convention from being hijacked by a single fringe agenda. If a majority of voters say “yes” to the convention question, which appears on the ballot once every 20 years, the following Election Day, New Yorkers elect delegates to an Albany convention, who would then be charged with crafting amendments to improve and streamline the constitution. The final, key step would be that any proposed constitutional changes coming out of a convention go to voter referendum the following year.

As a result, New Yorkers should not fear the exchange of ideas that a ConCon would allow, according to SUNY New Paltz Professor Gerald Benjamin, a constitutional scholar and longtime convention proponent.

“There’s no common agenda for a constitutional convention. Lots of people support a right to clean water, for example, and some other people think it would lead to excessive litigation. My view is that a convention cannot and will not produce radical solutions,” Benjamin said. “There are going to be 10,000 proposals, and each will be deliberated.”

A recent Siena College poll found that a strong majority of New Yorkers, 62 percent, from across the political spectrum support holding a constitution convention, a once-in-a-generation opportunity to modernize the lengthy, outdated New York State document that is the foundation of state law. Two-thirds of Democrats, 55 percent of Republicans, and 59 percent of independents polled said they support a ConCon.

But the same study found that New Yorkers are mostly uninformed about a convention; only 13 percent have heard a “great deal” or “some” about it. The disparity between the two sets of poll responses may indicate voter frustration with their state government, which has been home to a seemingly endless torrent of corruption scandals.

At the same time, powerful labor unions are spending big money to convince voters to reject the convention in November. While support of a ConCon remains strong, even among union families, according to the latest poll, labor organizations like the United Federation of Teachers and SEIU-1199 have already launched campaigns to sway New Yorkers towards a “no” vote.

“Support for ConCon has remained consistently strong over the last couple of years,” said Siena College pollster Steven Greenberg, in releasing the latest poll. “But the question remains, will that support stay strong as voters hear more about ConCon, particularly as we move into the fall and various interest groups start spending money to educate voters – both in support and opposition – about ConCon? Only time will tell.

In the meantime, we've compiled a round-up of 10 of the more intriguing proposals that have emerged ahead of the upcoming referendum, ranging from bold to bizarre.

1. Reforming the Court System
While the New York State Bar Association has not taken a position on a constitutional convention, in February, the NYSBA issued a report highlighting how an overhaul of the state constitution could go a long way towards streamlining the state’s notoriously complicated court system. A constitutional rewrite could simplify everyday legal processes related child custody, traffic tickets, business disputes, and more.

"The potential to simplify the state's court system, promote access to justice and reduce unnecessary costs and inefficiencies make the issue of court consolidation one that is ripe for consideration at a constitutional convention, should voters choose to hold one," the report says.

2. Home Rule
The constitution’s “home rule” statute, which dates back to 1963, says that anything not explicitly stated as purview of cities in the state constitution is placed in the authority of the state. Many issues impacting New York City fall into this grey area, including mayoral control of New York City schools and city speed limits. Cities are left disempowered and at the mercy of the state on many issues affecting local constituents. Local leaders, like the mayor of New York City, are then reliant on votes from far-off legislators related to especially parochial matters.

One proposal, laid out by Effective NY, a liberal think tank, would change the wording of the statute to grant cities power unless specifically restricted by the constitution (like the United States Constitution’s ninth amendment, which grants states any powers not explicitly granted the federal government). Other states, like New Jersey and New Mexico, already have provisions defaulting control to municipalities.

3. Unicameral Legislature
Does New York State really need two legislative houses? Some point to gridlock in Albany as a byproduct of the fact that New York has two legislative houses that often pass conflicting measures.

Nebraska is currently the only state that has a unicameral Legislature, or a Legislature with one house.

In 1962, the Supreme Court “one man, one vote” ruling required districts in both legislative chambers in state houses to be divided by population rather than geographic districts. The decision led to redistricting, which allowed Democrats to retake the state Assembly, although legally-dubious gerrymandering has allowed Republicans to retain control of the Senate, though currently by a sliver of politicking that is beyond district lines.

According to Professor Benjamin, of SUNY New Paltz, there is no rationale for bicameralism now that both houses are selected by the same formula.

“The idea there is that bicameralism suggests that there are different bases of representation. The Senate is a territorial and the House is population-based representation. Before 1960, you could have two different bases, but now it’s no longer defensible,” said Benjamin.

While some argue bicameralism is necessary to give Republicans a voice in the legislative process, Benjamin says GOP lawmakers should compete for the majority.

Some who are interested in unicameralism take a different view. Last year, Assemblymember Mark Johns, a Rochester Republican, proposed legislation to eliminate the Assembly and instead increase the numbers of Senators from 63 to 75, though the bill never made it to the floor and no companion bill has been presented in the Senate.

4. Make Lawmaking Unpaid
In the past two years, already waning public trust in the state Legislature was shattered following the convictions of both legislative leaders on public corruption charges. In order to restore that trust, one lawmaker is exploring ways to get money out of politics completely.

Legislation introduced earlier this year by Republican Assemblymember David DiPietro, whose district includes Erie and Wyoming counties, would make the Legislature unpaid -- volunteer positions with an even lighter part-time schedule than lawmakers currently are required.

“If we remove pay from the equation, only those entirely interested in serving the public would consider running for office,” DiPietro wrote in his legislative column in February. “This action would save the state millions of dollars, and bring about a new era of citizen leadership. Holding this position is an honor and one that should be respected. This isn’t a full-time position and there’s no need to make it one. This is a part-time position in which you serve the people and you should be serving them with a clear conscience.”

While no groups have specifically proposed this as a potential ConCon agenda item, a constitutional amendment would be required.

5. Special Prosecutor for Certain Police-Involved Deaths
Governor Andrew Cuomo signed an executive order appointing Attorney General Eric Schneiderman a special prosecutor for unarmed civilian deaths involving police officers in 2014, and though he has renewed the executive order since, there has been no movement in the Legislature on a bill to make a permanent special prosecutor.

While civil rights organizations like the American Civil Liberties Union have not taken a position on the upcoming convention referendum, should the public vote to hold a convention, this would be one plank advocacy groups might push to enshrine in constitutional law.

6. Single-payer Healthcare
Federal efforts to “repeal and replace” the Affordable Care Act have renewed the discussion around New York having its own comprehensive healthcare system.

“The New York Health program,” authored by Assemblymember Richard Gottfried, who chairs the Assembly Committee on Health, would provide comprehensive, universal health coverage for every New Yorker, and has passed the Assembly three years in a row. A similar bill has been sponsored by 30 Senate Democrats, a number which is likely to rise to 31 now that the seat of Senator-turned-City Council Member Bill Perkins has been filled, but without the requisite 32 votes in the 63-seat chamber, it is unlikely to pass any time soon.

Effective NY argues for a constitutional amendment that grants New Yorkers the right to health care, enabling a single-payer system.

7. Limit Messages of Necessity
Messages of Necessity, which allow the Governor and Legislature to override the otherwise-required three-day aging period for any piece of legislation, are often misused in Albany. Major legislation, including the recently-passed $153 billion state budget, are pushed through with little scrutiny from lawmakers, the media, and the public.

According to one proposal put forward by Effective NY, the constitution would be amended to require a two-thirds vote in the House and Senate in order to enable a Message of Necessity.

8. Pensions for All
More than half of private sector employees in New York State do not have access to a retirement savings plan through work. This spring, Obama-era rules allowing state- and city-based retirement savings programs were rejected by the Republican-controlled Congress. Both New York City and the State had been exploring the possibility of creating a publicly-backed private-sector retirement-savings program, but those possibilities appear scuttled, or at least on hold.

A constitutional convention could be the best way to compel the state to guarantee a retirement program for all working New Yorkers. Samuels of Effective NY, who is committed to spending significant money for a “yes” vote on the ConCon question, has been advocating for a private sector retirement savings program for years.

9. Legalizing Marijuana
Could New York become the next state to fully legalize medical and recreational marijuana? The legal cannabis movement is spreading across the United States, with eight states now allowing recreational use of the drug.

New York State recently created a medical marijuana program, but only for a short list of 10 health conditions, and it may only be consumed in specific forms. However, due to highly restrictive zoning requirements that prevent access and the limited number of patients that qualify, marijuana dispensaries are struggling, according to the Buffalo News.

There is also a criminal justice reform element to legalizing marijuana, as countless have been arrested and jailed for minor, non-violent drug offenses. While Gov. Cuomo unsuccessfully advocated for decriminalization laws in 2012, the governor and the Senate have consistently opposed legalizing recreational use.

Jerome W. Dewald, who founded the PAC Restrict & Regulate in NY State 2019 (RRNY), says he has talked to marijuana industry leaders about utilizing the constitutional convention to advocate for full adult-use cannabis legalization in 2019.

“It’s commonly accepted that our legislature is the most corrupt in the nation. New York is important [for marijuana legalization] and there is no viable mechanism to get our agenda in New York besides for a constitutional convention,” said Dewald.

10. Upstate Secession
On the more extreme end of the spectrum are the Upstate New York secessionists. Ever since Vermont successfully broke away from New York in 1791, there have been secession movements in the state, though they have mostly remained on the fringe.

The Divide NYS Caucus is a coalition of New Yorkers who are unhappy with state policy they feel is unfairly dictated by New York City lawmakers. The Assembly is controlled by Democrats, many of them from the city, while Republicans -- many of them from Long Island and upstate -- currently cling to the majority in the Senate thanks to partnerships with breakaway Democrats. In 2015, the secession movement gained steam, when upstate New Yorkers -- mostly conservatives upset over issues like the gun control Safe Act of 2013 and Cuomo’s 2014 hydrofracking ban -- organized a protest in the Southern Tier. Now the caucus is seizing on the potential for a convention as a way to drum up more support.

The group proposes dividing the state into two or three autonomous regions, separating upstate from New York City, and possibly segregating Suffolk and Nassau counties as well. Each region would have its own Governor and regional legislators, who would serve six weeks out of the year at the state Legislature, according to Divide New York Caucus Inc. Chair John Bergener.

“The state government under the proposal would have about the same powers of the Queen of England,” said Bergener. “We are required to have an administrator and a Legislature, but we are not required to give them power.”

While the consensus from constitutional experts is that secession is implausible and potentially damaging to upstate’s economy, which relies heavily on New York City tax revenue, a recent bill sponsored by Assemblymember Stephen Hawley (Western New York), and co-signed by eight of his colleagues in the Assembly GOP, calls for a referendum on whether to separate New York City from the rest of the state.

Related legislation introduced in the Assembly and Senate aims to increase power to the counties, allowing them to supersede state law, or exempt regions outside New York City from certain provisions of the SAFE Act.

by Rachel Silberstein, State government reporter, Gotham Gazette

Read more by this writer.

10 Bold or Bizarre Proposals for a New York Constitutional Convention Thu, 01 Jun 2017 04:00:00 +0000
As Legislative Leaders Warn of Con Con Dangers, Good Government Groups Come Out in Favor assembly chamber via wikicommons

The Assembly (photo: wikicommons)

While legislative leaders are declaring opposition to a New York State constitutional convention, government reform organizations are trending in the other direction, with some who were wary of the idea in previous years coming out in support or considering doing so.

Leading up to the November 7 vote on whether to hold a convention, the debate is shaping up around fear of what could be taken away versus hope that the public can take a shot at democratic reform.

Republican Senate Majority Leader John Flanagan and Democratic Assembly Speaker Carl Heastie, in a joint appearance in Albany on May 9, both warned of dangers posed by deep-pocketed interests from outside the state, who could potentially derail a “people’s convention.”

“I understand people’s desire to put it in the hands of the people to decide. But people are also subjected to campaigns,” Heastie said at the event at the Albany Times Union’s Hearst Media Center. “I think we should be very, very careful in exposing the constitution to the whims of someone from outside of the state who can decide to spend millions of dollars to put forward their position.”

Heastie and Flanagan, of the Bronx and Long Island, respectively, suggested that the state instead continue using piecemeal constitutional amendments to update the lengthy, outdated document. Such amendments must be passed by two consecutive legislative classes, then the public via singular ballot amendment.

Similar sentiments have been expressed by Senator Jeff Klein, leader of the Independent Democratic Conference, a breakaway group of Senate Democrats that forms a ruling coalition with the GOP, and, most recently, by Senate Minority Leader Andrea Stewart-Cousins in an interview with The Daily News. On the other hand, Assembly Minority Leader Brian Kolb, an upstate Republican, has for years been an outspoken proponent of holding a convention and is the only legislative conference leader in support of a “yes” vote on this year’s November ballot question as to whether New York should hold a convention to edit or rewrite its constitution.

The authors of the New York State Constitution included a provision that once every 20 years, the public would have the opportunity to completely overhaul and modernize the document. So, this Election Day, voters will vote on whether to hold a constitutional convention -- or a “con con,” as it is sometimes called -- and if the referendum passes, the people will then elect delegates, who would convene to potentially rewrite, or significantly propose modifications to the state constitution. Those proposals would then go before voters as a slate of changes to be voted up or down.

While legislative leaders are expressing their fear of a con con, a growing number of government reform advocates say it’s an opportunity to enact long-sought reforms that have been stagnant in the Legislature.

In March, for the first time in half a century, the League of Women Voters’ New York chapter endorsed a “yes” vote for the once-in-a-generation referendum, citing electoral reforms, campaign finance reform, fair legislative redistricting, and the modernization of New York’s court system as motivating factors. The League had been instrumental in the last convention, which took place in 1967, but did not produce the sweeping reforms many had hoped for, and ultimately all the proposed amendments, which were controversially presented to voters as a package deal, were voted down.

In the 1990s, the group’s board had a policy that the League would not endorse another constitutional convention unless the essential changes were made to the delegate selection and convention process. Five years ago, LWV board members agreed to modify that policy; rather than automatically opposing a convention that did not meet those requirements, the board would reconvene and consider whether to support a convention while thoroughly weighing delegate election and transparency concerns.

In 1997, the last time a con con was on the ballot, most good government groups chose to remain neutral on the ballot question, focussing instead on launching educational campaigns about the pros and cons of holding a convention, and potential issues to be addressed. Only Citizens Union, one of New York’s leading government reform organizations (and sister organization to Gotham Gazette’s publisher, Citizens Union Foundation), has consistently backed a constitutional convention, despite what was to many a disappointing outcome from the 1967 convention.

Twenty years ago, as was the case during previous con con votes, there was some momentum to back a convention prior to the vote, and public opinion polls showed significant interest. But a last-minute ad campaign by labor unions and other interest groups ultimately dissuaded voters for voting “yes” on the ballot question.

“The campaign to defeat the convention referendum has created some of the oddest political bedfellows in recent memory. The A.F.L.-C.I.O., the Conservative Party, the Sierra Club, the National Abortion Rights Action League, legislators of both parties and Change New York, the anti-tax group, were united against the measure,” wrote Richard Perez-Pena, for the New York Times, on November 5, 1997, just before the con con vote that year.

This year -- which follows a two-decade stretch that has seen dozens of elected officials leave office due to ethical or legal scandal -- there appears to be a marked shift and legislative leaders are finding themselves at odds with government reform organizations who view the convention more favorably, even those who sat out the vote in 1997.

Citizens Union is again in suppor and the League of Women Voters is not the only government reform organization reevaluating its stance. The New York State Bar Association (NYSBA), which as part of its mission seeks to raise judicial standards and reform the legal system, will discuss the issue at its upcoming House of Delegates meeting on June 17, and consider voting on whether to take a position on the ballot measure, a spokesperson has confirmed.

In February, NYSBA issued a report highlighting how a constitutional convention could streamline all aspects of New York’s bafflingly complex legal system, from traffic ticket processing to child support orders.

The League of Women Voters does still hold concerns about how a convention would be implemented, but decided the potential benefits outweigh the risks.

“We’re not saying this is the end-all and be-all, but we are going to try get all we want out of it. And there are risks, but it’s a balancing act. We asked the question: Is it worth it that we could gain more than people think might be lost? And the state League has decided yes, that it’s worth opening it up and trying to get the changes that we can’t get through the Legislature now,” said Laura Ladd Bierman, executive director of League of Women Voters New York.

Ladd Bierman noted that some state lawmakers recently told members of the League they would be more amenable to pushing for voting reform if the public voted in favor of a convention.

SUNY New Paltz professor Gerald Benjamin, who has been on the front lines pushing for constitutional reform for decades, said he is not surprised government reform organizations are coming around on the issue.

“Twenty years ago they made a set of decisions, so they have 20 years of experience in observing whether they have been able to achieve the reforms necessary -- they have not -- so they rightfully understand that this is the only way they are going to make progress,” said Benjamin. “Twenty years have reinforced the observation that the Legislature will not make fundamental structural changes, and the reputation in New York governance has steadily declined.”

Representatives from other government watchdog organizations -- including New York Public Interest Group (NYPIRG), Reinvent Albany, Common Cause, and Citizens Budget Commission -- told Gotham Gazette that they have not taken a position on the ballot question, but that the issue is being debated vigorously internally.

“I'm not sure what we will do. Twenty years ago we thought we could play the most useful role by staying neutral and offering a balanced look at the pros and cons of a convention,” said NYPIRG’s executive director Blair Horner. “It's possible we'll be in the same place this year.”

Bill Samuels, a businessman, con con advocate, and chair of the board of EffectiveNY, a think tank, believes the chaos surrounding President Donald Trump’s administration will also help fuel a “yes” vote in November.

“The same activists who were around in 1967 during the civil rights-anti war movement are still around today,” he said. “When you combine that with what’s happening in Washington -- if I had to sum it up: we still have a system in Albany that’s still not reaching its goal. New York and California have emerged as the great stand-up states to Trump. We want to be excited, we want to have the best Legislature in the country, and we think we can! The best way to fight Trump is to move New York forward.”

In the past, Governor Andrew Cuomo, a second-term Democrat, has repeatedly expressed support for a convention, suggesting a con con may be the only way to enact comprehensive campaign finance reform while Republicans who oppose a public matching system and donation limits continue to control the state Senate. While Cuomo came out in vocal support last year and attempted to insert money into the state budget for a preparatory committee, the issue was not included in his 2017 State of the State policy book nor his executive budget proposal. Cuomo’s office told Gotham Gazette the governor still favors a con con, but Cuomo has not been vocal about the issue. This governor has not set aside funds to plot out a potential convention like his father, former Governor Mario Cuomo, did ahead of the 1997 vote.

During a recent meeting with The Daily News editorial board, Cuomo said he supports the idea of a convention, but “you have to find a way where the delegates do not wind up being the same legislators who you are trying to change the rules on. I have not heard a plan that does that." In this point, Cuomo echoed what a variety of other elected officials, including Mayor Bill de Blasio, have said about concerns regarding the delegate process.

Meanwhile, a 40-member coalition of con con supporters called the Committee for a Constitutional Convention has launched. The group includes many prominent public figures including former chief judge Jonathan Lippman, former lieutenant governor Stan Lundine, and former state senator Seymour Lachman. They are joined by constitutional experts like Professor Benjamin and Touro Law Center dean Patty Salkin and slew of well-known attorneys like the Brennan Center’s Fritz Schwarz. Bill Samuels is a member as well.

For Citizens Union, support for a convention has only been reinforced over the last two decades. “Twenty years ago, we felt like money in politics was a problem, that effective strong oversight of public ethics was a problem, that our court system was a problem, and the balance of power between the governor and the Legislature were a problem,” said Citizen Union executive director Dick Dadey. “Those problems have not gone away. In fact, they’ve gotten worse. Our state government is broken. Budget bills are passed in the dark of night with little time to scrutinize them, pay to play culture is thriving, and voter apathy is rising.”

Opponents of a convention fear opening up the constitution could put at risk hard-won labor and environmental protections, among others. Those concerned about outside interests swaying the outcome of a convention also note that delegates are frequently people who are well-known in public life, often those who hold or previously held a public office, and point to a skewed delegate election process, which they say undermines the point of a “people’s convention.”

The current system allows major political parties to influence the delegate election, by grouping together a “slate” of candidates on the ballot. Further, of 204 elected delegates, 189 would be chosen from New York’s 63 state Senate districts, three from each, which Democrats note are heavily gerrymandered in favor of Republican interests.

While opposition forces, led by labor unions, have already begun to spend sizeable sums of money to encourage a “no” vote, it is unclear how rising populist sentiments indicated in last year’s presidential election -- especially through the campaigns of Bernie Sanders and Donald Trump -- may factor in.

If the ballot measure does pass, Ladd Bierman of LWV noted, there are many questions that must be addressed in the following legislative session. Will voters be presented with a preselected slate of delegates? Will the convention be made subject to Freedom of Information Law? Where will the convention take place? The constitution says it must take place at the Capitol on April 2, but if the convention overlaps with the legislative session, there may not be sufficient office space to host the event.

Regardless of where they stand on the ballot measure, she said, if it passes good government groups will be on the front lines pushing for a process that is as fair, transparent, and as democratic as possible.

by Rachel Silberstein, State government reporter, Gotham Gazette

Read more by this writer.

Note: Gotham Gazette is an independent publication of Citizens Union Foundation, sister organization of Citizens Union. ]]>
As Legislative Leaders Warn of Con Con Dangers, Good Government Groups Come Out in Favor Tue, 16 May 2017 04:00:00 +0000
A Constitutional Right to Healthy Schools? museum school 25


When voting Nov. 7, 2017 on whether to call a state constitutional convention, New Yorkers should consider enhancing social welfare rights

New York’s Constitution mandates that every 20 years New Yorkers be asked via a statewide ballot referendum whether they want to call a state constitutional convention. The next such referendum is on the ballot on November 7. If passed, the agenda for the constitutional convention that then occurs should include enhancing social welfare rights, including healthy public schools.

The state constitutional convention held in New York in 1938 passed amendments mandating healthy work conditions for government employees, including healthy work hours. These amendments were added at a time when the conditions in public schools were very different.  For example, the one-room schoolhouse remained common, dedicated public bus transportation to schools was just emerging, and forcing children to attend school before dawn was exceptional. If New York’s Constitution guarantees healthy work conditions for government employees, it should do the same for children attending public schools, who have even less choice over the place and hours of their work.

The Proposal
I recommend two additions to New York’s Constitution. Currently, its bill of rights includes the following provision: “Labor of human beings is not a commodity nor an article of commerce and shall never be so considered or construed. No laborer, worker or mechanic, in the employ of a contractor or sub-contractor engaged in the performance of any public work, shall be permitted to work more than eight hours in any day or more than five days in any week, except in cases of extraordinary emergency.”

Analogous to this bill of rights for government employees (“labor”), I recommend one for public-school students: “The state shall not compel students to sacrifice fundamental biological needs to attend public school.” This would include forced attendance at school prior to dawn and at times that make it impossible to get appropriate sleep.

I also recommend adding a health provision to the education clause in the main body of the Constitution (addition marked in italics): “The legislature shall provide for the maintenance and support of a system of free and healthy common schools, wherein all the children of this state may be educated.”

education resources Snider ConConNote that in New York’s Constitution the term “common schools” refers to what we nowadays call public schools. Although this clause may appear vague and unenforceable to the casual reader, New York’s top court has interpreted it to mean that the Constitution guarantees every New York student, including disabled, delinquent, neglected, and dependent children, a “sound basic education” through high school.

As applied to school start times, the proposed change to the education clause could be interpreted to entail a due process requirement when a public-school district mandates pre-dawn start times; for example, that a school district couldn’t arbitrarily schedule a poor child to take a public-school bus at 5:55 a.m. (before dawn) to attend a high school starting at 7:17 a.m. (also before dawn during winter months) without providing a reasoned, public explanation for its decision that explicitly considers children’s health and safety.

Manageable court remedies for a school district with persistent unhealthy bus pickup or school start times could include mandating a healthy time or, less onerously, that the district offer the harmed students a voucher based on the district’s current average student cost. The voucher could then be used to allow the student to get a sound healthy education at another school.

It’s arguable that New York’s clause, “No person shall be deprived of life, liberty or property without due process of law” already includes a right to sleep and health more generally. For example, on February 28, 2016, India’s Supreme Court ruled that “sleep is a fundamental human right” based on the clause in its constitution protecting the “right to life.” But given the history and wording of New York’s Constitution, such a court interpretation in the context of public schools is unlikely.

New York also has a clause mandating that its “state board of social welfare shall make inspections… as to matters directly affecting the health, safety, treatment and training of [reformatory institutions’] inmates.” But public school children are clearly exempt from this requirement.

Other social welfare clauses likely to be proposed at a New York State constitutional convention would be a guarantee of affordable basic healthcare coverage for all; affordable, debt-free tuition at public institutions of higher education; and a clean and healthy environment, including water and air. Redefining the definition of “needy” in the “aid, care and support of the needy” clause would also be likely. Consequently, it could be smart politics for the social welfare groups backing such proposals to form an alliance prior to the Nov. 7 referendum.

con con process graphThe Process and Opposition
The constitutional convention process grants the public three votes (see graphic): 1) whether to call a convention, 2) who to elect to a convention, and 3) whether to approve any of the convention’s proposals. The purpose of the mandatory referendum provision is to provide a mechanism to bypass the Legislature when the Legislature would otherwise have veto power over constitutional amendments involving its own power and the special interests to which it is beholden. In other states, the constitutional initiative serves a similar function, albeit in a less deliberative and democratic way.

Since the institution of a constitutional convention is a check on the Legislature, its natural enemies include the Legislature and any powerful special interest group that has a successful track record of influencing the Legislature. Coalition partners of these groups, who fear opposing their most powerful allies, are also its natural enemies, which may entail either taking a neutral position or actively opposing a measure that, absent the imperatives of coalition politics, they would support. Alas, many of these coalition partners are social welfare groups.

A primary argument that state constitutional convention opponents make is that a convention cannot be controlled by the Legislature and is thus a “Pandora’s Box.” But that is its prime virtue because if a Legislature could limit its agenda it would defeat the purpose of calling a state constitutional convention in the first place.

The more relevant question is whether the people can be trusted to vote in their own self-interest. For thousands of years, the enemies of democracy argued that the people were incapable of making reasoned judgments about their own self-interest. They have a point, but in the long run actions premised on the people’s incapacity for democracy—including their incapacity to override a legislature’s veto power over constitutional amendment—have proven far more harmful.

The health of our children should not be subject to the special interest politics that too often dominate American public education and intimidate parents whose children are held hostage. If Big Education views the cost of healthy public schools as a zero-sum game that comes out of its members’ paychecks, then it should be bypassed. In New York, the only available bypass mechanism is the state constitutional convention. If government workers have a right to healthy work conditions, so do children—even more so because they are children and have no say in the matter.

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A Constitutional Right to Healthy Schools? Thu, 20 Apr 2017 04:00:00 +0000
Needed: Fresh Eyes to Improve New York’s Constitution (Part II) excelsior image for snider column

This is part two of a two-part series entitled Needed: Fresh Eyes to Improve New York’s Constitution. Read part one: New York’s Mandarin Constitutional Culture.

Implementing First Amendment Values in the 21st Century

Drawing an analogy between Chinese Mandarin culture of the 18th and 19th centuries and New York’s constitutional culture in the early 21st Century, I argued in Part I of this series that New York’s current debate over constitutional reform lacks fresh ideas for systemic reasons. One reason stems from the incentive of legislatures to veto democratic reforms in areas, such as legislative redistricting, term limits, and ballot access, where they have a conflict of interest with the public. That’s a problem because for democratic innovators to do the difficult and costly work of innovation, they need to believe that their ideas have a chance of being implemented.  Another reason is that the young are usually society’s innovators. But New York’s mandarin constitutional reform culture favors the old.

I propose an idea emblematic of the type that should but hasn’t been part of the current debate over New York State constitutional convention based reform. Its goal is to dramatically enhance First Amendment values in the election process, and it is premised on the close but rarely recognized link between technology and constitutional design. Specifically, new information technology has made ballot access ripe for constitutional innovation.

Currently, New York government has exclusive control over both ballot data and ballot interfaces. I propose requiring it to give up control over ballot interfaces while retaining its control over ballot data.

In the pre-internet era of paper ballot technology, this couldn’t be done without sacrificing important democratic values, notably the secret ballot. Until the late 19th Century, control of ballot data and interfaces were separate.  For example, political parties would print pre-filled ballots (called “party tickets”) and distribute them to voters.  But this rightly came to be viewed as intolerable because the party officials and others who handed out the ballots at the polling booth could keep track of which ballot a voter submitted and reward voters who submitted their preferred, prefilled ballot. The solution was the “secret ballot,” which is now mandated in New York’s Constitution and gave government control over the ballot interface as well as ballot data.

Unfortunately, giving government control over the ballot interface came with huge costs. It gave legislators much greater control over both which candidates are included on the ballot presented to voters and how information about them, including endorsements (popularly known as party labels), are used. Such control is inconsistent with First Amendment values of public participation and free speech.

Modern information technology makes it possible to separate ballot data and interfaces without the compromises associated with print technology. Specifically, voters should be allowed to choose non-government ballot interfaces that are directly linked to public ballot data. Ironically, we currently allow the public access to non-government media, except the media most vital to preserve First Amendment values: the ballot interface.

Online voting, such as has already been successfully implemented in Estonia, could one day greatly improve the implementation of this idea. But its successful implementation does not depend on online voting. As with absentee voting, the voter could simply print a machine-readable ballot with the necessary data and then either bring it to the voting booth or mail it in.

Effectively separating ballot data and interfaces is a non-trivial matter of both technology and institutional design. It is probably comparable in difficulty to the online voting system developed by Estonia. But it also isn’t a moonshot. Most important, it would generate a huge payoff, especially for down ballot elections where ballot interfaces have been most influential.

Candidates, interest groups, and political parties currently spend billions of dollars every major election cycle on providing repetitious, soundbite-long, and often misleading information trying to influence voters. Not only is the quality of information very poor, but the high cost of paying for it heavily tilts the playing field in favor of deep-pocketed special interests.

Providing a voter friendly ballot interface when voters are most motivated and able to use election-related information would radically reduce barriers to political entry, thus revolutionizing campaign finance and providing a fundamentally different paradigm for campaign finance reform.

Legislatures opposed to separating ballot interfaces from data will use the admittedly difficult technological challenges to doing so as their primary excuse. But the primary roadblock to implementing this innovation is no longer technological; it is that incumbent legislators—regardless of party—view such a separation as a threat to their incumbency advantage. For them, opening the ballot interface is tantamount to giving free publicity to their opponents.

Thus, in New York, only through a constitutional convention can this barrier to political competition be removed.

Government control over ballot interfaces may one day be viewed as hostile to First Amendment values as the 17th century British government’s practice of licensing access to the printing press. A state constitutional convention is the most plausible institutional mechanism to address this First Amendment abomination. But if New York’s mandarin state constitutional culture persists, that won’t happen. A similar failure to innovate didn’t work out well for the late 18th Century Chinese when they were the world’s leading power.

New York’s motto, excelsior, for “Ever Upward,” clearly indicates that preserving the status quo at the expense of the people isn’t the goal. But if Exelsior excludes modernizing New York’s constitution, then in the long run the rest of the Excelsior agenda won’t matter.


Estonia’s 36-year old prime minister explains Estonia’s e-voting system for parliament.  According to Freedom House, the world’s leading source of data on the comparative democratization of countries, Estonia ranks #1 on Internet freedom.

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Needed: Fresh Eyes to Improve New York’s Constitution (Part II) Thu, 09 Mar 2017 05:00:00 +0000
Needed: Fresh Eyes to Improve New York’s Constitution (Part I) constituents poster boards

(photo: Samar Khurshid/Gotham Gazette)

This is part one of a two-part series entitled Needed: Fresh Eyes to Improve New York’s Constitution. Read part two here.

New York’s Mandarin Constitutional Culture

During the last 500 years, a culture of innovation set off the West from the rest of the world, allowing it to achieve far higher living standards. Incentives for innovation have remained strong in the private sector but have greatly weakened in the public sector.

The United States and its most innovative state, New York, have led the West in innovation. During the 18th and 19th centuries, this included leading the world in constitutional innovation, which is arguably the most important type of public sector innovation. But present-day New Yorkers and their opinion leaders are as allergic to such innovation as Chinese emperors and Mandarins were in the 18th and 19th centuries.

Symbolic of the decline are the stale ideas currently dominating New York’s debate over whether to call a state constitutional convention. Every 20 years the state constitution mandates that New York voters be asked whether they want to convene another state constitutional convention. To date, New York has convened nine proposing and two ratifying conventions. On November 7, 2017, this question is next on the ballot.

The unique democratic function of a state constitutional convention is to provide a mechanism to bypass the state Legislature’s veto power over constitutional amendment when the Legislature’s institutional interests conflict with those of the public. The result is that not only the Legislature but also the most powerful special interest groups that thrive exercising influence over the Legislature are implacable enemies of state constitutional conventions.

The current debate in New York has been dominated by opinion leaders who were already adults when New York’s last constitutional convention convened in 1967. They have much to bring to the current debate, especially a sense of history, and we are lucky to have them. But too often their and their allies’ reform ideas are from a different generation. Their ideas may be improvements over the antiquated status quo, but so were the now obsolete audio and video tape recorders from the second half of the 20th Century that replaced paper-based recording technologies.

In contrast, when Thomas Jefferson wrote the U.S. Declaration of Independence and when James Madison and Alexander Hamilton both participated at the 1787 national constitutional convention and then defended it in the Federalist Papers, they were all under 40 years of age. The three leading figures behind the design of New York’s first constitution in 1777 -- Gouverneur Morris, Robert Livingston, and John Jay -- were all 30 years of age or younger. They brought to the design of our federal and state governments fresh eyes and many innovations from which we have greatly benefited.

A better balance between the old and new is needed. Unfortunately, getting true innovators involved in democratic reform is one of the hardest parts of democratic reform, as the rewards for such innovation are often negligible at best. Consider just one reason: why do the immensely difficult and costly work of developing an innovation that has no chance of being implemented because of a legislature’s institutional conflict of interest?

A state constitutional convention is one of the few institutional mechanisms in our democracy with the potential to stimulate fresh thinking. It would be a tragedy to squander that opportunity.

My greatest worry is not, as convention opponents argue, that special interests will derail a convention by getting it to place harmful proposals on the ballot. If special interests do corrupt a convention—and they will certainly try—the people have shown they can be trusted to veto the resulting proposals. This, after all, is why New York’s and other states’ most powerful special interests hate the institution of the state constitutional convention and have spent so much to oppose convening one: they are more confident in their typical, ongoing control over legislatures.

A greater worry should be that New York’s opinion leaders, including its press, academics, advocates, and politicians, will continue to treat democratic innovators the way Chinese Mandarins did during the era when the United States was founded. New York needs to breed a new generation of Alexander Hamiltons, and the time to begin that effort is now.

New York, despite its vast human and material wealth, has become too much like 18th century China, when China was a vastly larger, more sophisticated, and more prosperous country than ours but became arrogant and thus complacent in its superiority. New Yorkers should look to democracies, including Estonia, Iceland, and Sweden—two of them about the size of New York when it drafted its first constitution—where a can-do culture of democratic innovation survives.

New York, like China thought it was for hundreds of years, remains at the center of the world. But it won’t remain there unless it proves capable of developing an outward looking culture characterized by both constitutional humility and innovation.

This is part one of a two-part series entitled Needed: Fresh Eyes to Improve New York’s Constitution. Read part two: Implementing First Amendment Values in the 21st Century. And, read other columns by J.H. Snider here.

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Needed: Fresh Eyes to Improve New York’s Constitution (Part I) Thu, 02 Mar 2017 05:00:00 +0000