Gotham Gazette

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Cuomo’s Preparatory Commission Should Prioritize Fixing ConCon Process

color guard SOTS

photo: Kevin P. Coughlin/Office of Governor Andrew M. Cuomo 

In his 2016 State of the State Address, Governor Andrew Cuomo promised to “invest $1 million to create an expert, non-partisan commission to develop a blueprint for a [constitutional] convention.” New Yorkers will vote on Nov. 7, 2017 on whether to call a state constitutional convention and the commission would educate the public on what a “yes” vote might entail.

Traditionally, such commissions have taken the constitutional convention process itself as a given and focused on the substantive changes to state government a convention might propose; for example, today’s hot-button issue of legislative ethics. But that agenda is too limited. The commission should also consider reforms to update the convention process.

In the past, a potent argument against calling for a convention has been that a convention would merely replicate the Legislature’s corruption. For example, some major New York good government groups opposed calling a convention in 1997, the last time the question was on the ballot, by arguing legislators elected as convention delegates would dominate a convention (approximately 5% of the delegates elected to New York’s last convention in 1967 were sitting legislators). Legislators elected as delegates would also unjustly receive two salaries: one for serving as a legislator; another for serving as a convention delegate.

Clearly, fixing such procedural problems is critical to winning popular support for a convention.

Governor Cuomo has taken a good first step in addressing such arguments by announcing that the commission will be “authorized to recommend fixes to the current convention delegate selection process, which experts agree is flawed.”

But that is not ambitious enough.

The Legislature currently controls too much of the constitutional convention process. In passing enabling legislation, it has every incentive to exacerbate rather than fix procedural problems so as to make a “yes” vote as unappealing as possible to the electorate. The Legislature has this incentive because New York’s Constitution includes a convention process designed to serve as an effective check on the Legislature’s power. That—and not because a convention would be no different than itself—is why the Legislature is an intractable enemy of conventions.

Other states have used the constitutional convention process to fix the constitutional convention process itself, and that should be a major goal of New York’s next convention. For example, concerns about legislators serving in a convention could be easily addressed if legislators were banned, as is done in Missouri and Michigan, from running as convention delegates.

Such a ban shouldn’t be controversial. Plural office holding is universally banned in American state constitutions because it violates the checks and balances principle. Elected officials, for example, cannot simultaneously serve in the legislative and executive branches. Some states ban public officials from simultaneously holding two public offices even when not violating the checks and balances principle. The more universal principle involved is that it is hard for officials simultaneously holding two separate public offices to fulfill their fiduciary duties of care and loyalty to the public.

November 2017But the plural office holding problem is merely one of many procedural issues that a constitutional convention could fix. Instead of New York’s past practice of making procedural concerns an objection to calling a convention, they should be one of its chief attractions because a convention is the most realistic opportunity to fix them.

Consider what is at stake. A constitutional convention is the only democratic mechanism New Yorkers have to introduce constitutional amendments that aren’t in the institutional self-interest of the Legislature. That’s far too important a democratic function—a function that implements the people’s most fundamental right, the right to alter their constitution—to allow easily fixable problems to serve as an excuse for preserving the status quo.

Fixing the problems would require a genuine concern for future generations of New Yorkers—something the public and our leaders often profess but rarely do. The question is not merely what the convention New Yorkers would call in 2017 could do to create tangible benefits for our generation, but how that convention could improve future conventions a generation or more hence, when the politicians of today will have left office.

It turns out that democratic theorists think very highly of designing democratic institutions when those doing the designing cannot know whether the rules they design will benefit themselves at the expense of others. For example, you don’t want politicians to design presidential rules of succession after a president has died and they know which specific politicians will benefit from a given succession rule. Under such a “veil of ignorance,” as democratic theorists label it, delegates can act with the greatest degree of civic virtue.

Paradoxically, then, the set of procedural problems convention opponents use to disparage conventions should actually be one of the best reasons to call one.

Fixing the procedural problems should be a major priority of the governor’s commission not merely because it wants to submit its recommendations to the Legislature, but because it ultimately wants to submit them to the convention, which should be spurred on, not hindered, by the Legislature’s obstreperousness. Coming up with the right policies for New York—not merely what is politically feasible given expected Legislature opposition—should be the commission’s goal.

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In a previous column for Gotham Gazette, Snider called for Gov. Cuomo to create a preparatory commission: Preparing for New York's Next Constitutional Convention Referendum, June 4, 2015.

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