Assemblywoman Lifton speach against the Constitutional Convention

Lifton Speech on Constitutional Convention
Fall 2017

As you all probably know, on the ballot this year will be the question of whether to hold a Constitutional Convention. I can understand the desire of some to hold a state Constitutional Convention. In my idealistic moments, I can almost imagine a big, multi-week or month meeting of a wide spectrum of New Yorkers discussing and debating the important issues of our day and putting out a new proposed document for the voters to approve. It sounds kind of exciting – and I might very well be interested in serving at such a confab if it were to happen. What’s so bad? Where’s the worry?

My reading and the discussion I hear on this tells me that there are many things to worry about, from a progressive point of view, in opening up the whole Constitution in such a convention. Our constitution -- and the volumes of case law that derive from our constitution – has many good things in it that I and other progressives want to preserve, such as support and protection for public education, for both public and private workers, for social welfare, and for the environment, among other areas.

One of the most crucial areas in my view, is Education. Our state constitution, in Article XI, Sect 1, says that “the legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.”

This clause led to the Board of Education V. Nyquist ruling in 1982 that, while rejecting the claim that disparities in education funding were unconstitutional, did acknowledge that the Education Clause ensures the availability of “a sound, basic education” to all children in the state. That ruling and language, in turn, led to the first Campaign for Fiscal Equity (CFE) (v. State of New York) ruling in 1995 that said, while complete equity was not required, our schools must have adequate funding to educate all children in “the basic literacy, calculating, and verbal skills necessary to enable children to fully function productively as civic participants capable of

voting and serving on a jury,” and, on that basis, their claim could proceed to trial.

Out of that trial in State Supreme Court came the well-known CFE decision in 2005, which said that many New York children were not being afforded such adequate education and that the State had to both reform the school aid formula and add money to that new formula, so that poorer schools could be brought up to adequate standards and performance. While Governor Pataki went to court to stall the implementation of that decision for two years, arguing that an 8th grade education was adequate for our children, the new Governor, Spitzer, came into office in 2007 and began to implement the CFE decision with the legislature. We agreed on a new formula and the $7 billion in new aid that the court had ordered, to be phased in over four years. The recession of 2008 and the slow recovery stopped progress on that phase-in with two or three years of painful cuts and then two years of only small increases, but the CFE court ruling, derived from the Education Clause in the Constitution, stands as an order that cannot be ignored and, I hope, will yield benefits to our schoolchildren in the years ahead.

The great worry for Progressives and all those who care about the education of our children is that right-wing forces and those who favor privatization of our schools, especially with the money that the Citizens United ruling could allow to pour into the delegate selection process, might gain a majority in a convention and amend the Education Clause, reneging on that guarantee and allowing for vouchers for private schools, among other possible changes.

Attempts to weaken educational guarantees have become common in the wake of other school finance decisions, such as New Jersey’s. There have been 18 successful amendments to state constitutions concerning education since 1996 (Missouri and S. Dakota, for ex.), capping or making it harder to raise taxes, and as a result, there have been large cuts to schools. Many are familiar with Proposition 13 in California, an amendment to cap property taxes that, over time, had CA schools plummet from 1st, 2nd and 3rd best in the nation to the bottom of the pack – 47th, 48th, 49th in national rankings. While New York now has a tax cap, it is in statute, where it is easier to amend if that is needed.

Another important part of our State constitution, Article XVII (27), speaks to “the aid, care and support of the needy.” While the definition of “needy” and the determination of what to provide is left to the discretion of the

legislature, it is clear that aid to those in need, “was deemed to be a fundamental part of the social contract,” in the words of a major state court ruling on this issue. There have been efforts in Albany to amend our constitution to make caring for those in need permissive (optional) rather than mandatory, and a convention could well bring up that effort again. When poverty and homelessness are on the rise (in Syracuse, Rochester and Buffalo – 50% of children are living in poverty), taking away that vital protection is definitely a worry.

In the very important area of the environment, the concern is that delegates could cut away at environmental protections in our Constitution, most famously, the “forever wild” provision for the Adirondack and Catskill Parks. Or that language saying that economic interests trump environmental concerns might be added.

Another major concern for progressives is protections for workers, both public and private. Labor rights are enshrined in Article 1, Section 17, guaranteeing wage and hour standards, the right to organize and collectively bargain, as well as the statement that human labor is not a commodity. Section 18 authorizes the Legislature to enact state worker’s compensation laws. Although federal labor law has largely preempted these state initiatives, should the federal laws ever be altered, these important protections for workers would remain in NY. Having their basic rights so stated in our Constitution sends a powerful message that workers in New York are important and deserving of respect.

For a while now, there have been claims that state employees’ pensions are “too generous” and that the Constitution should be changed to slash the agreed-to benefits in favor of a 401K. One of the biggest concerns progressives have is that pension protection could be undercut or eliminated. Currently, our Constitution says such pensions: “shall be a contractual relationship, the benefits of which shall not be diminished or impaired. (Adopted by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.)” The progressive view is that these pensions are a part of a contractual wage structure which provides considerably less salary upfront than an individual of similar education and skills would receive in the private sector. Public employees accept this in exchange for a guaranteed deferred compensation after retirement. In the 1938 Constitutional Convention, delegates recognized these contributions, and

New York voters agreed. But, today, it seems likely that public pensions would be a prime target for a Con Con.

And then there are the issues of Social Welfare. In spite of the enormous cutbacks in public assistance that happened with Welfare Reform in the 90’s, the right is once again attacking assistance to those in need. It amazes me, given the huge bailout we all did for Wall Street, the nearly-unprecedented job losses that resulted from the recent, and for some, a continuing, recession with many still unable to find adequate employment, that anyone would be targeting social welfare programs that have helped to to sustain individuals and families through a slow recovery. Those protections would also be at risk at a convention.

Aside from the many substantive issues at stake, progressives continue to be concerned about the delegate selection process, with delegates running from large Senatorial districts and 15 delegates running at-large statewide. Many think that this process would strongly advantage those with wealth and those already in power with name-recognition. You might well end up with a Convention of Elites, if you will, who may be pre-disposed to deal with the concerns of the elite, and not a Convention of the People that would deal with the real concerns of most people. Many think that we would need to fix that before the call for a convention, and all acknowledge the difficulty of doing that.

Now, that concern is compounded by the Citizens United decision from the US Supreme Court that allows for unlimited undisclosed spending by corporations, unions and associations. Under that ruling, vast amounts of money would likely flow into our elections for delegates – though, under NYS law, that spending would need to be disclosed.

It’s interesting to look at the last Con Con in New York -- in 1967. To quote the distinguished Hank Dullea “While structural reform was seen as a major priority by many good government groups, the delegates actually elected in 1966 did not share this objective.” So immediately, there was a disconnect, apparently, between the public and the good government groups that presumably speak for the public on these matters. They did not elect people who wanted structural reform, and those who did apparently chose not to run or were too few in number to prevail at the convention.

What did happen is that a majority of Democratic delegates (no surprise in a Democratic state) produced a document with a number of what I think of as largely Progressive proposals in it -- a state takeover of Medicaid, universal, free higher education, a prohibition on gerrymandering, a prohibition of discrimination based on gender, the creation of a bipartisan commission on re-districting, and two controversial parts on aid to religious schools and debt reform, whereby voters would no longer vote to approve debt, in exchange for a cap on debt, based on state income.

Most of the good government groups were not happy with the result (the LWV, for instance, had wanted major judicial reform, which was not one of the proposals coming out of the convention), and they and others urged the public to vote “No” on the November ballot, which they did by a 3-1 margin.

It’s hard to know what to say about that. The voters said “yes” to a convention, they elected delegates, and then they voted down the resulting changes. Either the public is uneducated about a convention and our constitution (that’s a safe bet), or doesn’t really care about process and structural issues, or is confused – or some combination thereof. It seems likely to me that when they were confronted by several major issues and changes in state law and then-current practice -- and they had to vote on the document as a whole, not in pieces -- they simply said no –“I’m not sure I understand all this, it’s confusing, so I will opt for the status quo.”

It’s also important to keep in mind that we can, and often do, amend our Constitution, through the legislative amending process.

In closing, it seems to me that, because so many people are struggling with work and family demands – more than ever – we will likely see a lack of focus on these process issues from the public of the sort that is needed to have a successful convention with broad participation by many New Yorkers. We would likely see a disconnect again between the priorities of those urging a convention and the priorities of the average working person and voter. In my 14 years as an Assemblymember, for instance, I don’t think any “regular person” if you will, has told me they are concerned about court reform, even though that is high on the list of many Good Gov’t groups and has been for years.

We might better urge people to work on one or two issues they really care about, join together with others and build a true public movement to make the change they want, either by statute or by Constitutional amendment. That usually takes time and long-term commitment, but, in the end, has proven successful in many cases. I think of the Clean Indoor Air Act, where environmentalists joined with public health activists, mobilized the general public, and after 11 years, enacted the law to ban smoking in public buildings -- and laid the groundwork for further amendments to that act.

The sometimes frustratingly-slow, deliberative legislative process where public hearings are held, sometimes many hearings over several years on one topic -- such as we saw with HVHF -- and about which there were many media reports, editorials, town hall meeting discussions, etc. -- brings the public more fully into the legislative process and helps build a substantial consensus on a resolution to a major and difficult issue. Many in the public are then able to focus on one important issue and feel more confidence in the decisions that are ultimately made. The normal legislative process, with all its flaws, involves people in a way that, perhaps, a convention cannot, especially given its short time-frame. It is hard at this juncture in our history to imagine the public becoming deeply engaged in a convention concerning structural issues or governmental process; most are busy trying to put food on the table, pay the rent or their kids’ education, all the while caring for elderly parents. When we talk about a convention to address those concerns, perhaps the voters will say “yes,” -- and then say “yes” to its results.