Adriene Holder’s NYT letter to the Editor on a Constitutional Convention
WEDNESDAY, NOVEMBER 01, 2017

Adriene Holder, Attorney-In-Charge of the Civil Practice, penned a letter to the editor in response to a recent article on the risks of a New York Constitutional Convention.




The New York Times
Fear vs. Hope: Battle Lines Drawn Over a Constitutional Convention
By Jesse McKinley
Oct. 26, 2017

For as long as anyone can remember, dysfunction has ruled New York’s capital: Corruption is common, power is limited to a few, and habitual calls for change disappear like the sun on a January day.

But next month, the voters of New York have a chance to force a wide-open, monthslong, everything-on-the-table examination of the state’s founding document by authorizing a constitutional convention, a sight not seen here since Robert F. Kennedy was the state’s junior United States senator.

If passed, Proposition 1 would trigger the first such state convention in the nation in more than a quarter century; the last one, in 1992 in Louisiana, was limited to discussing the bone-dry issue of state and local revenues.

In New York’s case, however, the changes to the State Constitution could be profound, as could the impact on the inner workings of Albany and beyond. Ethics reform, sweeping changes to the judiciary, easing the stranglehold of power exerted by the governor and legislative leaders — all of it would be fair game for consideration.

But it is that freedom that terrifies some groups, many of them unions that fear that such a free-for-all could enable anti-labor forces to undermine collective bargaining rights, or gut pensions. Potential rollbacks of personal freedoms — from abortion rights to the Second Amendment — have galvanized opponents on the left and the right, as have concerns about protections for the environment and public education.

“It comes down to fear versus hope,” said Blair Horner, the executive director of the New York Public Interest Research Group, a good government organization that is neutral on Proposition 1. “The fear that something bad could come out of it, and the hope that something good could.”

Proponents are up against a concentrated “no” campaign that has focused an arsenal of handouts, lawn signs and television ads — including one featuring a Trumpian likeness — to battle what opponents call “the con’s con,” warning of potentially disastrous constitutional changes, such as authorizing tax cuts for millionaires and reducing mass transit funding.

Such claims are both plausible and a stretch: Even if “yes” voters prevailed, their victory would only be preliminary, as any changes to the Constitution approved by convention delegates would then have to be approved again by voters in a referendum, something that supporters of Proposition 1 say would mitigate extreme positions or policies in a deeply blue state.

Still, with such high stakes, the convention campaign has upset the normal political alliances in New York.

Conservatives and major labor groups, for instance, have been fighting together to defeat Proposition 1, fearing either the expansion of onerous regulations or an erosion of worker protections and perks.

Republican and Democratic legislative leaders in Albany have both disparaged the idea, citing its high cost and the danger of allowing little-known delegates to revamp the Constitution.

Observers say the election may tip on any number of issues, including turnout in places like Westchester County — a Democratic redoubt where there is a hotly contested race for county executive — and whether voters realize that Proposition 1 is on the back of the ballot. (“Remember to flip your ballot,” one “Vote No” flier reminds voters.)

In a sign of a topsy-turvy and sometimes contradictory campaign, even the most seemingly like-minded of groups have split over Proposition 1: The League of Women Voters of New York, for example, is a supporter, citing the 100th anniversary of the state’s suffrage law and a chance “to send a strong message that they are fed up with corruption and dysfunction in Albany.”

But the state’s Planned Parenthood organization opposes it, calling the convention “a complicated, expensive and potentially dangerous undertaking,” with the potential to “erode access to our essential health care across the board from contraception to abortion.”

Supporters of the measure have complained of dirty tricks, including the appearance of “No” stickers on police cruisers in New York City, where the Patrolmen’s Benevolent Association opposes the convention. There have also been “fake news” Facebook posts that have suggested that a lack of a vote on Proposition 1 would be read as a “yes,” a falsehood that has led to hundreds of confused emails to the state Board of Elections, which says it is doing its best to combat such disinformation.

“Battling this type of thing on social media is very difficult,” said John Conklin, a board spokesman.

Money, naturally, is flowing. Labor groups have already poured hundreds of thousands of dollars into defeating Proposition 1, with more likely in the closing days of the campaign. On the “yes” side, Bill Samuels, the founder of Effective NY, an advocacy group focused on reforming Albany, has spent more than $400,000 of his own money to support it.

In an off-year election with little other drama, including a tepid mayor’s race in New York City, the heated campaign around Proposition 1 has stood out.

Advertisements paid for by the New York State A.F.L.-C.I.O. and the Communications Workers of America — two major players in state politics — depict supporters of the convention as money-hungry lobbyists, slimy salesmen and martini-swilling elitists seeking special deals, a motley collection depicted in another anti-Proposition 1 ad as “the bar in ‘Star Wars.’”

Jerry H. Goldfeder, an election law expert who teaches at Fordham Law School, says he opposes the convention because of both its potential for onerous horse-trading — “One would have to be naïve to think that wouldn’t happen,” he said — and because of the ability of local governments, through charter revisions, to “enact reforms without opening up a can of worms.”

Those who favor the convention see an opportunity for a kind of progressive potpourri: stronger ethics and election laws, civil rights protections and judicial reforms, more local control and a constitutional right to clean air and water.

“It’s a once-in-a-generation opportunity,” said Gerald Benjamin, a political-science professor and an outspoken supporter of Proposition 1, reeling off a raft of possible reforms, including ending gerrymandering and increasing legislative powers. “These are fundamental structural questions, and we know they can only be solved by constitutional change.”

Efforts in 1977 and 1997 to call such a convention failed, but current polls have the “yes” voters narrowly leading, apparently riding a deep dissatisfaction with New York’s government and a broader national populism, where the urge for methodical change is battling with the urge to blow-it-all-up.

Still, Mr. Samuels said that advertisements and continued chaos in Washington had dimmed the chances of the proposition passing.

“The effect of Trump nationally, even here in New York, of people putting their heads in the sand, versus fighting back with courage, is very worrisome,” said Mr. Samuels, a millionaire who made his fortune in software. “The fear is real and fascinating.”

The New York Civil Liberties Union opposes the convention. “I have a wish list a mile deep of things I’d like to fix, change and add,” said Donna Lieberman, the group’s executive director. “But I believe the Constitution, as a statement of fundamental right, should be hard to change and should not be up for grabs in its entirety.”

If the ballot measure were to pass, some 200 delegates — elected in November 2018 — would be summoned to Albany the following April for several months of debate, discussion and drafting of proposed changes.

Gov. Andrew M. Cuomo exemplifies the kind of mixed emotions that many in the state seemingly feel about Proposition 1. Mr. Cuomo, a Democrat who is thought to have national ambitions, has expressed support for the idea of a convention.

But the governor has done no campaigning on its behalf, and says he worries about the event’s being hijacked by legislators who already dominate Albany — a concern loudly voiced by the anti-convention forces.

“If we’re going to have a convention of the current elected officials to rewrite the Constitution,” he said earlier this month, “that defeats the purpose.”

The last convention in New York was in 1967, after a Democrat-led Legislature eager to discuss issues like education and taxation asked — and received — approval from voters. One of those delegates was David N. Dinkins, who would later become New York City’s first African-American mayor.

Now 90, Mr. Dinkins suggested that Mr. Cuomo’s fears about undue influence from already-elected officials were valid.

“In many ways it was a lot like the Legislature,” Mr. Dinkins recalled, adding that most major decisions were made by a handful of people. “I don’t have a recollection of an offer being made by leadership that was rejected by debate on the floor.”

In the end, the proposals suggested by the 1967 delegates were voted down, including codification of First Amendment rights, changes to taxation and education, and repealing prohibitions on government aid to religious schools.

For his part, Mr. Dinkins isn’t sure how he will vote on Nov. 7, saying “if it’s an opportunity to make some new law, some good law, I might support it.”

“I’ll decide sooner rather than later,” Mr. Dinkins said. “I just don’t know yet.”



This article originally appeared in The New York Times.