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The Nelson A. Rockefeller Institute of Government

 
NYS ConCon 2017

Potential Issues




A Constitutional Reform Agenda for New York: Some Suggestions

Peter Galie and Christopher Bopst



We see this agenda as a start — one open to additions, subtractions and refinements. We hope it will serve as a vade mecum for citizens who will be asked in November 2017 to vote on the question of whether to convene a constitutional convention and a starting point for those charged with the task of providing the background preparation for delegates elected to that convention, should it be called.

We have arranged our suggestions using a fourfold classifications scheme: Housekeeping, Institutions, Policies, and Constitutional Change.

Following the sequence of articles in the Constitution or listing proposed topics in the order of their importance are two alternative organizing frames.

I.     HOUSE CLEANING


Consider:
  • Reducing the length of the document by eliminating redundant, obsolete and superseded provisions.
  • Bringing more coherence to the document by revising and rearranging current material.

II.     INSTITUTIONS


Article III: The Legislature

The heart of any system of representative government is the legislative branch. Not surprising that it has received more attention than other branches of state government. To reestablish it, constitutional reform coming from an outside body is necessary. A legislature unwilling or unable to initiate that renewal needs help in rescuing itself.

Here are some lifelines for consideration:

  • Fix the size of the Senate by changing the apportionment requirements generally (which have been attempted at every convention since adopted in 1894).
  • Create an independent redistricting commission.
  • Strictly limit outside income.
  • Require full disclosure.
  • Create terms limits for leaders or members.
  • Enact campaign finance reform.
  • Restructure the process by which salaries and related benefits are distributed and raises granted.
  • Join the majority of states in differentiating the terms of the two houses of the legislature.
  • Reduce the size of the legislature (currently the fourth largest — although none of the three states having larger legislatures have greater populations).

Article IV: The Executive

  • Eliminate the message of necessity.
  • Gubernatorial succession — consider legislative involvement in appointment of a new lieutenant governor when the lieutenant governor ascends to the governorship.
  • Eliminating the power of the lieutenant governor to assume the office when the governor is out of the state.
  • Eliminate the pocket veto.
  • Departments — define the functions of the attorney general; eliminate departments specified in the Constitution, leaving them within the control of the legislature.

Article VI: The Judiciary

  • Complete the consolidation of the court system.
  • Leave jurisdiction in the hands of the legislature: Do we need the most detailed judiciary article in the country?
  • Equalize the size of the appellate departments, or restructure them so that all of the boroughs in New York City are subject to the same appellate law.
  • Eliminate elections for trial judges and explore alternative procedures. We have a constitutional provision that requires trial court judges to be elected by the people, but they are not. The promise of voter selection is belied by such practices as cross endorsements, and the reality that one party dominance in many areas means whoever the party nominates is the winner: There is no effective choice, the Constitution to the contrary notwithstanding.

Article VIII: Local Finance and Article IX: Local Governments

  • Address unfunded mandates.
  • Re-evaluate the use of the property tax as the primary source of revenue.
  • Bring the local finance law into the twenty-first century by eliminating dated exemptions, changing the debt limits to those based on personal income, etc.
  • Revisit debt and tax limits on local government: There are so many exceptions in the document that, when coupled with the use of local public authorities, debt extends much beyond the constitutional limits. So, although it is exempted debt for constitutional purposes, it is debt nonetheless.
  • Address the problems created by a local government “system” consisting of thousands of unit with overlapping jurisdictions and responsibilities, i.e., the issue of consolidation.

III.     PUBLIC POLICIES


Article I: Gambling

  • Eliminate the prohibition on gambling.
Article III: Pension Benefits

  • Deny pensions for public officials convicted of a felony.
Article VII: State Finance

  • Revise the constitutional debt limit provisions, which appear to be at odds with the state’s debt incurring practices. We have a Constitution that limits the general obligation debt the state can incur to debt approved by the voters in a referendum, but there is no institutional mechanism that limits the amount of debt the state can and does incur outside that provision.
  • Review the budget process and the current balance (or imbalance?) of power that exists between the executive and legislature.
  • Examine the state’s practice of using cash budgeting and various other practices that discourage transparency and accountability, allowing structural deficits to build while the state claims balanced budgets, a situation that threatens the long term financial health of the state.
  • Authorities: provide more than one section to deal with these bodies.
  • Constitutionalize the Public Authorities Reform Act.
Article XVI: Taxation

  • Eliminate the constitutional protections for tax exemptions.
Article XI: Education

  • Include in the Education Article the court-ordered standard of a sound basic education.
  • Provide benchmarks or criteria for monitoring the state’s efforts to meet that standard.
  • Examine the status and role of the Board of Regents.
Article XIV: Conservation

  • Strengthen the conservation Bill of Rights section of the Conservation article.
Article XVIII: Housing

  • Afford counties the same incentives to participate in housing as cities and towns.

IV.     CHANGING THE CONSTITUTION


Article XIX: Amendments to Constitution

  • Review the process for selecting delegates.
  • Examine the “fox in the hen house" problem — public officials as delegates.
  • Reconsider the status of the 15 at large delegates.
  • Create a permanent constitutional revision commission empowered to make recommendations for changing the Constitution directly to the voters.
  • Institute a limited or indirect constitutional initiative.
  • Create a limited convention.