Lawyers should be urging their friends and families to the polls this November if only to vote in favor of a New York Constitutional Convention, an opportunity that will not be available again until 2037.
First, as attorneys we are aware more than most that the structure of New York’s court system, often called the most Byzantine and convoluted in the nation, exacts a heavy toll on its users, especially those who can least afford the waste of time, money, and stress its confusion and inefficiency exacts. Lawyers also know that blue ribbon commission after blue ribbon commission has recommended restructuring—the most recent, the Dunne Commission, estimated potential savings to the state in the range of $500 million a year—and that there is no reasonable hope that the legislature will adopt that recommendation.
Second, as lawyers we have professional experience in sorting out facts. We are therefore better equipped than most to point out the scare tactics and misrepresentations that have characterized much of the campaign against the Convention. The Contracts Clause of the U.S. Constitution completely backstops the New York State Constitution’s protection of public employee and retiree pensions, so that the Convention has no power to reduce, impair or take away those pensions. The last Convention cost about $7 million; accounting for inflation, the next should cost about $60 million, not the hundreds of millions of dollars bandied about by opponents. There is no massive influx of far-right Koch brothers or Mercer/Bannon money coming in to invest in some absurd effort to force some radical right-wing proposed constitutional changes down the throats of the electorate of New York state—which will get to vote to approve or strike down any proposals the Convention could make. Any such effort would be far too extreme to succeed in putting New York’s cherished constitutional rights at risk. Finally, in 2015 we saw the leaders of each house of the legislature convicted of corruption. The defendants are awaiting retrial because recent Supreme Court case law requires revised jury instructions—but they make very clear the need to bypass a legislature that continues to resist any effort to put in place real ethics enforcement. Nor will it challenge the power of its incumbents. The legislature will not enact independent non-partisan districting, public financing of campaigns, same-day registration, early voting, or anything else that helps to level the playing field for challengers.
Opponents of the Convention argue both that the Convention will do terrible things, and also that current legislators will control it so it will do nothing. They are “pounding the table.” As lawyers, we learned a very long time ago that’s what you do when you cannot pound the facts or the law. Let’s help our state see through the charade, and embark on the best chance we will have for many years to come to promote real democracy and truly resist corruption in our state.
Dan Feldman is a professor who teaches public management at John Jay College of Criminal Justice in the City University of New York. He served as an elected member of the New York State Legislature for 18 years, Assistant Deputy Attorney General for six years, and Special Counsel for Law and Policy to the New York State Comptroller for three years.