NYS Constitutional Convention Toolkit

May 26, 2017

Why the Con Con is a Big Con especially for seniors

This November New Yorkers will be asked to vote on whether we hold a convention to revise our state’s constitution. New York’s seniors, as the most reliable section of the voting population, will have a great impact on whether or not a convention is even held.

That the question is put before the voters is not a partisan decision; it’s required under the Constitution that voters must be given the option to hold a convention every 20 years. In the last 100 years, there have been only two instances where voters approved of a convention- 1938 and 1967. In 1938, voters held a convention and approved the subsequent changes that were put before the voters. The 1938 convention brought a great many progressive changes to the constitution- public relief, child labor laws, a regular 40-hour work week among others. The 1967 convention was held at a cost of over $10 million- an enormous amount at that time-but voters overwhelmingly rejected the package of reforms put together by the delegates. The estimated cost of a convention in 2019 is potentially hundreds of millions of dollars.

Some historians lay the blame for the failure of constitutional reform at the feet of the political powers that controlled the 1967 convention who decided to put all the changes in a single package, mixing many publicly popular items like codifying the bill of rights, environmental protection and with equally unpopular measures. A repeal of the “Blaine amendment” which prohibited the use of public funds for private or religious education, along with a state assumption of the cost of “entitlement” programs which would have allowed for the issuance of state debt without voter approval doomed the wholesale changes at the ballot box after the convention.

Some of the public opposition was based on the fact that of the 168 delegates attending the convention, most of them were party stalwarts and insiders (members of the NYS Assembly and Senate) “put up” by the parties that controlled state Government. The Convention chair was Anthony Travia, then the Speaker of the Assembly.

In 2017, the voters of the state will be asked whether or not they want to hold a convention. Seniors have more to lose than to gain. Very few people can tell you what’s in the national constitution, much less our state’s constitution. Truth be told, our state constitution was actually a template for the national constitution. Our state constitution sets out the framework for government generally, and many rights specifically. To hold a convention puts everything on the table.

Now some say that if you’re not at the table you’re on the menu. And to a degree that’s true. But it’s also true its better to skip the meal altogether if you know it’s going to make you sick.

Given the current state of corruption in New York, and its ethically challenged legislature, we see no reason to hand widespread power over reform to those in office who have failed to govern themselves. 31 lawmakers have been convicted of corruption in the past decade, including a Republican Majority Leader in the Senate and a Democratic Speaker in the Assembly. It appears that the US Attorney’s office isn’t finished with his investigations yet- it seems he may have the “3rd man in the room” Governor Cuomo in his cross hairs as he recently indicted the Governor’s closest aid and 8 others in pay to play schemes.

So, what do seniors have to lose if a convention is held and the delegates are doing the bidding of the politicians and not citizens? A lot, actually.

Under Article II, Section 2, the right of absentee ballots could be changed. That could diminish the number of seniors that vote and give less influence to our needs.

Under our current constitution, public employee pensions are protected from diminution. To hold a convention puts Article V section 7 squarely on the table. 

Many right wing zealots think that public employees have too generous a pension plan and would like to reduce benefits in the name of “taxpayer relief”. Defined benefit plans, they say, should be replaced with 401 (k) savings plans instead. This is an old chestnut, but the truth of the matter is 401 (k)’s are not retirement plans and were never created to be. They are savings plans meant to augment pension plans. They were created in tax law with the specific purpose of sheltering money tax-free for corporate executives and are as volatile as the stock market is as witnessed by the great recession. What would happen if, just prior to your retirement the stock market tanks and all your money is in 401k’s? Seniors with defined benefit pension plans aren’t rich. They collect on average about $32,000 per year. (TRS and ERS) Seniors with 401 (k)’s are far less prepared for retirement and potentially will have to access safety net programs to survive. Defined benefit pensions also are a major contributor to the New York State economy. According to the National Institute on Retirement Security:

• Defined benefit pensions contribute to the creation of 215,867 jobs in NYS
• Defined benefit pensions increase economic output (direct, indirect and induced) by $35.28 billion per year in NYS
• Defined benefit pensions result in the payment of over $ 4 billion per year in federal taxes and $4.13 billion in state taxes from New Yorkers collecting these pensions

It’s possible that millions of senior’s pensions could be slashed dramatically in a post convention world. Beyond the pension issue, there are plenty of other reasons seniors stand to lose if a convention is held. Did you know that—

A protection against age discrimination is contained in Article I, section 11. Seniors could lose the protection against employment discrimination based solely on age. Since, by 2020 1/3 of people between the ages of 65 and 75 will be in the workforce this is a really big deal

Article I section 17 guarantees an 8-hour workday, a minimum wage protection and a prohibition against child labor. How would overtime be treated?

Article XVII provides for public relief – also known as providing for the indigent. In today’s profit driven healthcare industry, it wouldn’t take long for profiteers to take advantage of loose or repealed regulations and laws protecting the indigent and aged.

Article XVIII guarantees oversight and protection of nursing homes in New York. Do we really want to eliminate that protection?

Article XIV addresses Conservation. It provides us with an Adirondack forest that is “Forever Wild”, and protects specific properties as well as general parks and lands from development or repurpose. Clean water and clean air would be back on the table once again.

Entire sections of the state constitution are dedicated to prescribing the powers and duties of state government, of local government and of municipalities. Real property taxes, and government indebtedness are covered by the current constitution. Oh what havoc could be wrought depending on who the delegates are and what their agenda is? It’s possible for seniors to have their STAR exemption on real property taxes taken away or slashed dramatically in the name of reform. The current tax exemptions for Social Security and State or federal pensions could be altered or eliminated. The $20,000 exemption from taxes for 401k, IRA or other pensions, making it possible to stay in New York State and contribute to the economy could go away.

There is of course a logical argument to be made for a convention. Many think a people’s convention would be a good thing. Those independent of state government could somehow get elected to the convention and bring with them changes the state legislature has failed to do- such as true ethics reform or genuine redistricting without gerrymandering. A convention could bring sunlight, openness and transparency to state government in the reforms it recommends. It could happen, but don’t bet on it.

For those who advocate for a constitutional convention to “fix once and for all” the pervasive ethics issues concerning elected officials, know that under Governor Cuomo, the legislature has passed ethics reforms 5 times in 7 years. Some of the reforms have been worthwhile such as the reform that made pension forfeiture a reality for any lawmaker elected after 2011 who is convicted of abuse of his or her office for personal gain. The only lawmakers not subject to that provision are those who were elected prior to 2011- people like former Democratic Speaker Sheldon Silver and Republican Majority leader Dean Skelos. In both of these cases, however, the presiding judges’ who were sentencing the disgraced lawmakers included a monetary fine equal to the amount of pension payments, which the convicted were scheduled to receive. Also know that the constitution can be amended by a vote of the people if lawmakers pass amendments in two successive legislatures. This piecemeal approach has been used dozens of times over our state’s history.

Recently, the NYS legislature passed, for the second time, a measure that would reduce or revoke the pension of a public officer convicted of a felony related to that officer’s official duties. The measure passed in the prior legislative session, and according to the NYS Constitution this second adoption now puts this matter on the November 2017 ballot. Also, by law convening a constitutional convention, via the requirement to hold a vote every 20 years, will also be on the November 2017 ballot.Like the prior amendment, this one allows for judicial discretion concerning the impact that diminution or forfeiture could have on a spouse or dependent children and applies to all elected officials regardless of when they joined the retirement system. This wedge issue is the prime argument used to justify holding a very costly constitutional convention in NYS where things can literally be turned upside down. This action shows that the existing constitutional amendment process works, therefore illustrating that there is no need to convene a Constitutional Convention in NYS.

But be careful what you wish for. Forces that want to hold a constitutional convention will tell you it’s in the people’s interest; that we must clean up Albany once and for all.

But that’s a con job. The people who will be delegates to the convention will not be outsiders. They will be elected office holders and or party hacks and they will outnumber any of the good government reformers who happen to make it to the $35 – 65 million back room party that power brokers (elected and unelected) will throw for themselves on the taxpayers dime. We can certainly think of better things to spend this massive amount of money on. The powers that control the convention may even change the constitution to allow themselves a nice big raise in pay. It’s been 14 years since the lawmaker’s salary was increased. A convention provides alot of cover for shenanigans like that.

Seniors have been around long enough to know about the law of unintended consequences when they see one. We hold the key, so to say, with our voting block. Seniors should vote no on the Constitutional Convention.  There is much to lose and little to gain….