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.
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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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J.H. Snider, the president of iSolon.org, is the editor of The New York State Constitutional Convention Clearinghouse and author of Does the World Really Belong to the Living? The Decline of the Constitutional Convention in New York and Other US States, 1776–2015.
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Council Member Levine, the author (photo: William Alatriste)
The numbers are startling: 42 million visitors per year in Central Park -- double the number of visitors to Disney World. Over 7 million people visit the High Line annually and 5 million visit Bryant Park. On a peak summer weekend 127,000 visit Brooklyn Bridge Park.
Park use in New York City is surging. And with the population in the five boroughs continuing to grow and tourism booming, this trend will surely continue.
But the story is not the same everywhere in our city. The marquee parks that are increasingly overwhelmed with visitors fortunately have the benefit of millions of dollars in private contributions to help them manage the onslaught. These funds enable them to provide the extra staffing needed to keep their parks looking beautiful despite the record levels of trampling.
Meanwhile, hundreds of parks in the city’s low- and moderate-income neighborhoods must survive on public funds alone. And those funds are often not enough to keep up with maintenance in the face of rising usage.
In the 1960s, New York City’s Parks Department had full-time staff of over 7,500. Since then the city’s population has grown by 1 million, but today the full-time headcount is just over 4,000. Over the decades the share of our city’s total budget devoted to parks has fallen from 1.7% to under 0.6% today. We now spend less per capita on our parks than San Francisco, Minneapolis, Seattle, and Washington, D.C.
We need to reverse this trend. The Parks Department budget must increase to meet swelling demand, and to ensure that low- and moderate-income neighborhoods have the great parks they deserve.
But we also need to grow our park system to serve a rising population.
This is especially true in neighborhoods being upzoned for greater residential density, including East New York, East Harlem, and the Jerome Avenue corridor in the Bronx. If those areas are to remain livable as they gain thousands of additional residents, they will require not just new schools and expanded transit capacity, but more open space as well.
Many neighborhoods throughout the five boroughs face a shortage of park space even without population growth: one-quarter of New Yorkers today have no park within a ten-minute walk from their home. We need new parks to fill in these gaps, most of which are in the outer boroughs.
Inspiring, transformative park projects are waiting for funding all over the city.
The Queensway would convert an abandoned rail line in central Queens into a 3.5-mile linear park. The BQ Green would deck-over part of the BQE, creating green space in park-starved Bushwick. The Lowline, on the Lower East Side, would turn an abandoned trolley terminal into the world’s first underground park, in an area where open space is being gobbled up by a building boom.
We also must pick up the pace of restoration of our city’s natural areas -- 10,000 acres of forest, wetlands, and grasslands in the five boroughs which many New Yorkers don’t even know exists. Modernized and better mapped trails will allow more people to discover these marvelous natural places which are often just a subway ride away.
And let’s find an environmentally sensitive way to open up parts of our park system that are now off-limits to the public, like the spellbinding North Brother Island -- a Lost City off the coast of the South Bronx, long ago overtaken by the forest. Let’s find a way to open up nearby Hart Island, whose 120 scenic acres are home to our city’s potter’s field and a century-and-a-half of history.
Mayor de Blasio’s preliminary budget for the coming fiscal year does little to reverse the trend of inadequate funding for our parks system. It leaves staffing flat and holds the Parks Department to less than 0.6% of the total city budget. It is critical that these numbers improve during negotiations with the City Council in the months leading up to the budget’s final passage in June.
A thriving park system isn’t just a luxury in a dense city of 8.5 million people. It’s essential to livability. Let’s invest now to ensure that every corner of the five boroughs remains livable for the years and decades to come.
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City Council Member Mark Levine represents parts of Upper Manhattan and is chair of the Council's parks committee. On Twitter @MarkLevineNYC.
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(photo: The Governor's Office on Flickr)
Business money and New York politics
The New York Joint Commission on Public Ethics, an oversight panel, recently proposed legislation to increase the requirements for lobbyists to disclose their political fundraising. The recommendation would help show the ways in those seeking to influence policy by day are raising money for policy-makers by night.
Blair Horner, legislative director for the New York Public Interest Group, one of several groups critical of New York's loose campaign finance laws, said recently that during this time in the legislative session in Albany, "It's pretty much pedal-to-the-metal when it comes to [legislators] hitting up lobbyists for campaign contributions."
The New York State League of Women Voters called for "a significant reduction of all contribution limits, special 'pay-to-play' limits on contributions by lobbyists and those who do business with the state and eliminating the LLC loophole." The Citizens Union, another reform group, has also called for campaign finance reform in New York.
In his annual message to the Legislature, the governor denounced "political contributions by business corporations" as "morally wrong....Their contributions are influenced by business and not by patriotism and, like other investments, are made in the hope and expectation of financial return or to avert threatened pecuniary injury." The governor recommended making political payments by corporations a criminal offense.
It almost sounds like Governor Andrew Cuomo last year and this year. But actually, it was Governor Frank W. Higgins, in 1906.
Concern with the influence of campaign contributions has deep historical roots here in New York.
Scandals led to New York's first campaign finance law
Governor Higgins was reacting to two scandals.
In the 1904 presidential campaign, the New York World alleged that business interests were funding the campaign of President Theodore Roosevelt, hoping to curry favor with his administration. His Democratic challenger, former New York Chief Judge Alton Parker, charged that TR was receiving large contributions from New York railroad magnate Edwin H. Harriman and Wall Street banker J.P. Morgan. "Would the public interest be safe in the hands of a party the greater part of whose campaign funds had been contributed by corporations and trusts?" Parker asked. Roosevelt denounced the charges as "unqualifiably and atrociously false."
Historians now know Parker was right but at the time he could not produce concrete proof. Roosevelt was dissembling. For instance, he had secretly asked Harriman to contribute to the Republican Party in New York State with the plea that its gubernatorial candidate, then-Lieutenant Governor Frank Higgins, needed help getting elected. Harriman complied, raising about $250,000.
But, as TR fully realized, supporting the party and Higgins in New York also meant indirectly supporting Roosevelt himself -- he was running for president on the same ticket. TR had directed that some business contributions be returned to their donors but campaign aides had not followed through and the president had not really checked.
On the other hand, Parker, too, received large contributions from business interests, mostly in New York City, though not as much as Roosevelt. There were rumors in the press, but nothing specific came out in public.
TR won in a landslide. But public concern about campaign finance was sharpened.
The next year, the Legislature investigated the management of insurance companies, uncovering a corrupt pattern of insider trading, fraudulent accounting, and deceptive sales practices. But the committee's counsel, Charles Evans Hughes (who would later himself be a reformist governor), dug deeper and got company officials to admit to providing large campaign contributions for state and federal offices. Hughes pressed U.S. Senator Thomas C. Platt, the long-time boss of the state Republican Party, about the real purpose of the contributions:
"Hughes: To see that the legislature, for example, did not enact legislation which they thought hostile to their policyholders?
"Platt: That is what it would amount to.
"Hughes: Is not that the way it really comes about, Senator, that they use of these contributions in the election of candidates to office puts the candidates in more or less of a moral obligation not to attack the interests supporting [them]?
"Platt: That is what would naturally be involved."
The contributions were not really bribes. They were more in the vein of what we now call building influence or access.
But the 1904 and 1905 scandals stirred public opinion. Higgins, whose 1904 campaign had benefitted from business campaign contributions as indicated above, did not mention that fact when he made his strong appeal to the Legislature for action in 1906.
After Governor Higgins' speech, the Legislature passed three pieces of legislation. One prohibited corporate campaign contributions. Another required candidates and political committees to make public a record of their campaign receipts and expenditures. A third redefined corrupt practices by defining what campaign expenditures were acceptable.
Closing one door, opening another
The campaign finance law was changed and updated in 1949 and 1976. It currently provides that corporations are limited to political donations of $5,000 a year, according to the New York State Board of Elections.
But there is a large loophole or exception, through Limited Liability Companies (LLCs). The New York State Department of State offers this definition of an LLC:
"A limited liability company (LLC) is an unincorporated business organization of one or more persons who have limited liability for the contractual obligations and other liabilities of the business. The LLC is a hybrid form that combines corporation-style limited liability with partnership-style flexibility. The owners of an LLC are “members” rather than shareholders or partners. A member may be an individual, a corporation, a partnership, another limited liability company, or any other legal entity. An LLC may organize for any lawful business purpose or purposes."
LLCs are flexible, versatile entities. But in 1976, the State Board of Elections decided that, when it came to campaign contribution, LLCs were more like individuals than corporations or partnerships. That meant they were subject to much higher limits on contributions, and much less stringent reporting requirements. The Board's decision was based on a since-changed federal definition.
This opened the way for huge contributions. The names of individuals behind LLCs are not disclosed. LLCs now routinely make large contributions to candidates for governor, other statewide offices, and the Legislature. It has become a way for monied interests to influence elections and gain access and influence.
Good government groups have called for the "LLC loophole" to be closed for several years. In 2015, the Board considered eliminating it but deadlocked, two to two, and issued a decision that it was up to the Legislature to change it. Governor Cuomo, a Democrat, and the Democratic Majority in the Assembly support the change but the Senate, which is controlled by Republicans, so far has balked. Cuomo and many legislators benefit from the contributions, so their efforts toward repeal look half-hearted.
In 2015, the Brennan Center for Justice at the New York University School of Law went to court to force the Board to change its ruling. Last year, State Supreme Court Justice Lisa Fisher dismissed the case, finding that the statute of limitations for challenging the Board's 1996 action has passed. She also characterized the issue as a “political question best suited for resolution through legislative action.”
Money and politics: what can citizens do?
One hundred and eleven years after New York's first campaign finance regulation, the state is once again searching for a solution to the issue. Good government groups and the Joint Commission on Public Ethics have set forth proposals, including closing the LLC loophole and increasing disclosure requirements. Governor Cuomo mostly seems to have given up. He has remarked that it is now up to the people to get the loophole closed.
As it turns out, the people may have a chance to do that this fall, when New Yorkers vote on whether to hold a state constitutional convention. A convention could alter the way we conduct and finance campaigns, including even proposing public funding of political campaigns.
Actually, an amendment to the constitution prohibiting corporate campaign contributions was proposed before in a constitutional convention:
"The idea of this section...is to prevent the great moneyed corporations of the country from furnishing the money with which to elect members of the legislature of this State in order that these members of the legislature may vote to protect the corporations," said its sponsor. "It strikes...at a constantly growing evil in our political affairs, which has, in my judgment, done more to shake the confidence of the plan people of small means in this country in our political institutions than any other practice which has ever obtained since the foundations of our government."
The amendment's sponsor acknowledged that the contributions were not akin to bribes. He said companies regarded them as "investments" made to get an "inexpressible sympathy between the candidate and the contributor."
Like the quotation from Governor Higgins in 1906, these words sound applicable to our situation today. But these were the words of New York attorney and statesman Elihu Root, a Republican, and the constitutional convention was in 1894.
Political insiders who were delegates to the convention opposed the amendment. It would cut off their campaign contributions. Democratic delegates derided it as a political charade. One Democrat said that "the whole business was buncombe, pure and simple, and [proposed] only for the sake of allowing Republicans to deliver patriot speeches for the record and their constituents." The proposed amendment was tabled and did not find its way into the constitution.
This year, New Yorkers have an opportunity to try again to get at the issue of money in politics. If the state's three branches of government -- governor, the Legislature, and the courts -- can't resolve the issue, then the voters may decide that is one strong reason to vote for a constitutional convention in November.
Of course, political insiders could bottle up reform amendments as they did with Root's proposal in 1894. On the other hand, with so much public interest and concern about the issue, publicity by good government groups and the media, and given the recent bouts of corruption in Albany, the prospects for changing the constitution to deal with the issue seem very good.
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Dr. Bruce W. Dearstyne's latest book is The Spirit of New York: Defining Events in the Empire State's History, published in 2015 by SUNY Press.
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