By Tim Rowland and Phil Brown
Every two decades, New Yorkers go to the polls to decide whether they want to rewrite the language in their state constitution. Historically, they take a pass on this opportunity—in more than a century, only three constitutional conventions have been called by the voters, the most recent in 1967. And even in that year, the same voters who called for the convention decided they didn’t like the result and rejected the changes proposed by the convention’s delegates.
But if last year’s presidential elections and the rise of a self-styled populist to power were reflective of anything, it was that much of the electorate is irritated with business as usual and might be willing to take chances in the name of draining the swamp.
Of all the governmental swamps in this country, the New York legislature might be the most fetid. Year after year, a toxic combination of dysfunction and corruption has curdled the public’s faith in their government. And many people, laymen and scholars alike, see the state constitution as the root of the problem. It is confoundedly verbose, having more words than Ray Bradbury’s novel Fahrenheit 451, and by turns is redundant, baffling, and antiquated. Many observers think the document ought to be torched, like the books in Bradbury’s novel.
On November 7, the public will vote on whether the state should hold a constitutional convention (con-con, for short) in 2019. If people vote yes, delegates will be elected next year.
Proponents of a convention argue that rewriting the constitution could eliminate gerrymandering, enact campaign-finance, ethics, and judiciary reforms, strengthen home rule, and set term limits on lawmakers.
But a lot can happen on the road to government reform. Supporters of pot legalization see an opening by way of a constitutional convention. So do those who would split the state into semi-autonomous regions or secede from New York altogether. Thus, a reasonable call for good government can break down into a free-for-all involving whatever half-baked ideas might catch the fancy of convention delegates.
Adirondack environmental groups oppose holding a convention, fearing that delegates will try to meddle with Article 14, the section of the constitution protecting the Forest Preserve in the Adirondacks and Catskills. It reads, in part: “The lands of the state, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed.”
This language, which conservationists regard as sacrosanct, was added to the state’s constitution during the convention of 1894 and approved by voters. Over the years, there have been numerous attempts to alter these words and water down Forest Preserve protections. Although these proved unsuccessful, the environmental groups don’t want to put Article 14 at risk again.
“I see much more opportunity for harm than improvement,” said Neil Woodworth, executive director of the Adirondack Mountain Club.
No one knows what changes to Article 14 might be proposed at a con-con, but Woodworth and others suggested several possibilities: opening up the Preserve to salvage logging, allowing the public to collect deadwood, relaxing rules on motorized recreation, and permitting the state to construct cabins in the Preserve.
Adirondack Council spokesman John Sheehan said an attack could come from a known opponent or out of the blue, noting that there have been more than a hundred attempts to change Article 14’s core language. “The drumbeat to make it happen never stops,” he said.
Ironically, the Adirondack Park Local Government Review Board fears the opposite—that Article 14 could be strengthened at a convention. For instance, Fred Monroe, the board’s executive director, speculated that the delegates could change timber in the forever-wild clause to timber and trees, resolving an ambiguity in the constitution that would make it harder to remove even small trees for projects that benefit the public.
“Changes could be made to the forever-wild clause in a constitutional convention which would be harmful to local government,” Monroe said.
Like the environmental groups, Monroe argues that changes to the constitution can be made by individual amendments, such as the land-bank proposal also on November’s ballot (see sidebar).
Evan Davis, who served as chief counsel to Governor Mario Cuomo, contends that environmentalists’ fears over Article 14 are unfounded. He argues that the forever-wild clause is so popular that delegates would not dare weaken it and even if they did the public would never approve it. “I think Article 14 is very, very safe, and the risk of its being watered down is very far-fetched,” said Davis, who once sat on the Adirondack Council board and is now serving as manager of the Committee for a Constitutional Convention.
Even if Article 14 enjoys widespread support, environmentalists worry that it will get lost in the mix if the delegates present to the public a new constitution in a single package—all or nothing. Davis, however, contends it’s much more likely that the public will be allowed to vote on various changes separately. “The one time they did it as a single decision, it totally backfired,” he said.
Davis added that the convention could be used to strengthen environmental protections throughout the state by including a statement, endorsed by many adherents of a convention, that everyone is entitled to clean air and clean water.
Davis sees a convention as the only way to get rid of corruption in Albany, which he described as “an embarrassment to the state.” He said the state legislature will never clean up its act on its own.
“Exactly how soon do you think it’s going to be that the legislature will be in favor of ethics reform?” he asked. “It’s going to be never. The normal process is a total dead end in terms of good conduct and ethics reform.”
But skeptics see little likelihood for genuine reform, contending that the process will be controlled by incumbent politicians and lobbyists with money to throw around.
“I’d feel much less strongly against it if I felt there was a legitimate opportunity for reform,” Woodworth said.
If a convention is held, voters will elect three delegates from each of the state’s sixty-three Senate districts and fifteen at-large delegates—a total of 204. Peter Bauer, executive director of Protect the Adirondacks, predicts the makeup of the convention “would be very similar in composition to the state Senate we have now, and that’s not a model of enlightened democratic thinking.”
The hearts of those seeking reform might be in the right place, Bauer said, but they might be opening a Pandora’s box. “The good-government people say that [Article 14] would never be affected,” he said. “But I don’t know how they will be able to unilaterally control the convention and protect forever wild.”
Since the Supreme Court’s 2010 ruling in the Citizens United case, cash has flowed unabated from corporations into the campaign war chests of favored causes and the politicians who support them. Donors who do not want to be identified can form untraceable LLCs and open the financial spigots, leaving special interests with little idea of who is attacking them or why.
“They can pour enormous sums of cash into the outcome,” Sheehan said. At least in part it is this potential—the great unknown—that has everyone with an interest in the Adirondacks spooked, no matter which side of the environmental aisle they’re on.
Opponents of the convention also point to the lengthy, cumbersome and expensive process for changing the constitution. If voters approve the initiative on November 7, they would return to the polls on November 6, 2018, to elect a slate of delegates. In April 2019, the convention would convene, with delegates proposing changes to the constitution. The public would vote on these proposals the following November. And while the presumable donnybrook might be good theater, it would be an expensive source of entertainment, most likely costing taxpayers millions of dollars. Not to mention the millions of dollars that would be spent on media campaigns by those on both sides of the issues. ■
. . .
Steps to a new constitution
November 7, 2017: Public votes on whether to hold constitutional convention.
November 6, 2018: Delegates elected if public votes for convention.
April 2, 2019: Start of convention.
November 5, 2019: Public votes on proposed changes to constitution.