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Cosentino: Pitfalls of a constitutional convention

Cosentino: Pitfalls of a constitutional convention

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On Wednesday this space discussed the efforts of the Rockefeller Institute for Government and other advocates to start educating the public about the upcoming mandatory referendum on whether to hold a constitutional convention that will be on the ballot in November 2017. While the argument can be made that there is a need for a constitutional convention to attempt to fix many of the problems that New York’s government now has, there are hurdles that voters will face to get a complete overhaul of New York’s constitution or major changes enacted.

Obviously the first will be getting voters to cut through the negative advocacy that will be coming forth over the next 27 months from those who want to protect the status quo. They will work hard to discourage “yes” votes for a convention, using all types of fear tactics to convince voters that even calling a convention is a bad idea. They successfully did this in 1997, with those advocating for calling a convention swamped away by those who wanted voters to oppose the call. In the end, voters bought the arguments against it, lock stock and barrel. Since then some have regretted their votes, especially with the continual exposures of the ethical cesspool that has become Albany, culminating with the recent indictments of former Assembly Speaker Sheldon Silver and former Senate Majority Leader Dean Skelos.

But getting a convention may be far easier than making sure that it can do its work without nefarious forces controlling the process and then getting matters before voters, who will have to pass on either a complete overhaul or individual amendments.

The biggest issue, should voters approve a convention, is who will serve as convention delegates. The most valid worry is that current and former members of the state Legislature and their staffs (who have done little to reform the current system) and paid lobbyists will dominate the body that is convened, holding to the status quo or preventing practical, passable measures getting to the public for a future vote. There is nothing to prevent current members of the Legislature and their staffs from serving as delegates to a convention, though there have been calls to prevent that from occurring. In 1967 the convention that pushed a failed overhaul of the constitution was headed by the speaker of the Assembly.

If anything, voters should make certain that they elect delegates who will either serve as delegates or as members of the Legislature, but not both. This will be a real challenge, since delegates will be elected in a similar fashion as members of the Assembly and Senate are elected every two years – they know the rules of how to get on the ballot, keep others off and get elected. If anything, voters would be wise to follow the model as described by local filmmaker Eileen Jerrett’s 2013 film “Blueberry Soup” which followed the very public and independent effort by Icelanders to create a new constitution for one of the hardest fiscally hit countries following the 2008 international fiscal crisis. A true “citizen” corps in the nationally released film, shown recently at the Auburn Public Theater, worked hard to reform and design a system without government officials who had a vested interest in the outcome being part of the process.

The other major pitfall will be to put measures before the public that not only are easily understandable but do not have controversial “poison pills” put into a package that make it virtually politically impossible to pass. As occurred with the 1938 convention (the last time a real change occurred to the state’s constitution), individual amendments may need to be presented, instead of a complete overhaul, allowing more controversial issues to risk defeat while getting the bulk of changes approved. Fortunately, unlike the Icelandic example in Jerrett's documentary, the state Legislature does not get to holdup a public vote on what is reported out in the convention, as occurred in Iceland, where their citizen’s hard work languished without a vote in their legislature to put it in place.

Cosentino is a former mayor of Auburn and can be contacted at


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