The Con-Con Conundrum: The Challenges of State Constitutional Convention

“The public bemoans the horrible campaign financing system, yet they expect the winners of that system to change the rules.” —Blair Horner, NYPIRG

The last time New York held a Constitutional Convention, in 1967, the delegates were primarily elected officials. The convention chair was Tony Travia, Assembly Speaker; the convention minority leader was Earl Brydges, president pro tem of the Senate.

In 1997 reform groups like the League of Women Voters pointed to the ’67 convention when arguing the delegate selection process must change before another convention is held. They advocated for a “people’s Constitutional Convention,” rather than one led by politicians.

By state law, every 20 years New Yorkers must be presented with a ballot referendum asking if we want to hold a Constitutional Convention. The next time this question will come up for a vote is 2017.

Those who would argue against a convention could easily rehash the reasons used so successfully in 1997 to defeat it: The current delegate selection process ensures nothing of substance will change, and the cost is too high, particularly given that the results might only serve to maintain the status quo.

The number of at-large candidates could also derail a possible convention.

In Decision 1997: Constitutional Change in New York, edited by Gerald Benjamin and Henrik Dullea, Columbia Law School’s Richard Briffault wrote, “The central problem with at-large or multi-member systems is that they extend the party of the majority’s domination, thereby making it more difficult for minorities than for whites to elect representatives of their own choosing.”

Additionally, there are new issues that could stand in the way of a convention. Take the question of logistics: Where would such a gathering take place? The last convention was held in the Assembly chamber from April through September. While that worked back in the ’60s when members of the Assembly decanted for their districts at the end of March, it won’t work anymore.

If 2017 seems a long way off, the actual convention would occur even further into the future.

Provided New Yorkers vote “Yes” on the convention in November 2017, it would not be until the following general election that delegates to the convention would be selected. Thereafter, as the state Constitution specifies, the delegates would not convene in the Capitol until the first Tuesday of the following year: April 2, 2019.

And that date is just when the convention would start!

As for when it would end, that would depend wholly on the delegates, since they are mandated to meet until their work is concluded— an indeterminate amount of time. Six weeks after they finally wrap up their business, the state must hold a special election for voters to approve or reject the proposed amendments to the Constitution. Thus the earliest any changes would be enacted would be the summer of 2019, with the possibility of the process extending until 2020 all too real given the glacial pace at which things often move in Albany.

As far off as these dates are, reformers are urging the public to pay attention now. Part of the reason for their early push is “Constitutional Conventionphobia”—the fear of conventions that exists at both the national and state levels—a concept coined in a 1996 paper of the same name written by the Rockefeller Institute’s Thomas Gais and Benjamin, a professor at SUNY New Paltz.

In New York much of that fear stems from the delegate selection process. In theory the process permits anyone to run. In practice it is like any other partisan election. Three delegates are selected per each of the state’s 63 Senate districts, as well as 15 statewide at-large delegates. The result would be a slate of delegates that looks very similar to the current legislative body. In other words, Assembly Speaker Sheldon Silver and Senate Temporary President Dean Skelos could very well be in charge of the proceedings, just as their counterpart predecessors were in 1967.

Another argument made against the Constitutional Convention is that opening up the document to any possible revision could jeopardize areas that some groups believe are integral to the fabric of the state: pension protections, labor organizing, the “forever wild” provision protecting the Adirondacks, the rights of the needy and the state’s requirements around education. Why risk all this, they ask?

Nonetheless, there is a growing chorus of reformers who argue that change is desperately needed.

NYPIRG and others want to use the next convention to improve the state’s Constitution. They want to streamline it; fix the state’s redistricting problems; change its arcane election laws; amend how the state budget process works; and shift the state’s fiscal year. Other reformers want initiative and referendum, and term limits.

All of those reforms are possible, says the longtime executive director of the Fiscal Policy Institute Frank Mauro, but not with the current delegate selection process.

In order for that process to be altered in any way, the Legislature would have to begin taking action sooner rather than later. Like any other constitutional amendment, changes to the convention’s ground rules would have to be approved by two consecutive Legislatures. That means even if both houses of the Legislature were to agree on changes in 2014— no small task—they would have to do so again in 2015 with enough lead time for voters to weigh in on them in November of that year. If the Legislature cannot reach an accord in 2014, then 2015 would be its last chance to pass the initial round of changes, since by 2016 it would too late to alter the process for 2017.

Which means the public needs to start paying attention now, says NYPIRG’s Horner. But politicians may not want to.

When asked why, Horner uses the fight over redistricting to explain: “In the first few years after redistricting, reformers begin to push for changes. Lawmakers respond, ‘It’s too early to think about it.’ Then when it gets close to the next round of redistricting, lawmakers say, ‘It’s too late to change the rules.’ Same rule can apply to the Constitutional Convention. Lawmakers will argue, ‘It’s too early to think about changing the delegate selection process.’ Then when the vote comes up they’ll say, ‘The delegate selection process is flawed, so vote No.’ ”

To borrow again from Gais and Benjamin—this time from a paper they wrote for the Temple Law Review in 1995: “How can states respond to demands for fundamental changes in a thoughtful, deliberative manner if many of the same political problems and public attitudes that gave rise to those demands also block traditional channels for addressing them?”

Therein lies the conundrum.

Susan Arbetter (@sarbetter on Twitter) is the Emmy award-winning news director for WCNY Syracuse PBS/NPR, and producer/host of The Capitol Pressroom syndicated public radio program.