The six constitutional amendments we will vote on next week are legislative requests for permission: Our representatives in Albany want our okay to do things they otherwise are not allowed to do.
The Legislature has to ask us because we (that is, “We, the people”) put limits on it in the state Constitution, usually at state Constitutional Conventions, and usually in reaction to some quite bad legislative practice: like borrowing much too much, or allowing the denuding of virgin state forests.
Most of these limits date to the 19th century. It’s a safe bet that none of us were actually there at the time, so we don’t clearly remember the reason for them, nor would we necessarily agree that all of them are a good idea today, well over a century later.
But agree or not, once limits are placed in the Constitution, they may only be overcome by changing the Constitution. Sometimes that is done in the courts, by interpretation; sometimes it’s done by amendment. If by amendment, the Constitution requires that the Legislature go back to the source: “we, the people.”
So shall we give permission?
Proposal 1. Authorizing Casino Gambling. Our constitution includes a gambling prohibition, but a lot of exceptions have been approved over the years. The result: Gambling is pandemic in New York. Proposal 1 seeks a big further exception, to permit up to seven destination resort casinos, the first four in three specified upstate areas that are hurting economically. Is allowing casino gambling a pragmatic recognition of existing reality that will bolster the upstate economy and generate needed money for tax relief and education? Or is it further government sponsorship of too often addictive behavior without any real overall economic benefit and very high under-acknowledged social costs? Should the state be punished for rigging the vote with loaded ballot wording? What surprises are there in the hundreds of pages of enabling legislation? If we have so many exceptions, why keep a prohibition at all? I say either take the prohibition out, or take it seriously. So I am a “No” on this one.
Proposal 2. Civil Service Credits for Handicapped Veterans. The Constitution says people should be hired to civil service jobs on the basis of “merit and fitness.” But we already have an exception giving military veterans a preference for public employment, with an even greater advantage for those handicapped while in the service. This change makes sure that the intent of this exception for handicapped veterans is honored. Okay with me. (Full disclosure: I’m a vet.) But it’s also more than a bit curious to me how easy this seems to be going down, compared with how much we battle about giving members of other groups preference for public employment.
Proposal 3. Exception to Borrowing Limits for Localities. When he first proposed allowing municipalities to borrow for 10 years for sewer projects outside their debt limits, Gov. Nelson Rockefeller said that it would help them “meet their sewerage treatment requirements without impairing their ability to finance other essential capital expenditures…” New Yorkers said “Okay” then, and four times since, each for 10-year periods. A 2007 study by the state comptroller’s office concluded that “Allowable exclusions to [constitutional] limits tend to obscure the total outstanding debt level of local governments and do not effectively control the reliance on debt.” Local debt has risen, in aggregate far too much. Yet big money is still needed for sewer systems. The NYS Department of Environmental Conservation estimated in 2008 that there was a need for an average of $1.82 billion a year for each of the next 20 years for wastewater infrastructure investments. This exception will not fill that need. Especially since state finance law gives thorough oversight powers to the comptroller, why hasn’t the Legislature taken “Yes” for an answer and asked for a continuation of the exception without the 10-year limit? The more I think about it, the less I like both the exception to local borrowing limits and the way it is being sought. I am voting “No.”
Proposals 4 and 5. Two Exceptions to “Forever Wild.” The state Constitution requirement that state forests remain “forever wild” transforms what are local matters elsewhere in New York into ones subject, for rural Adirondack and Catskill communities, to statewide vote. Making a small exception to “forever wild” to clear up century-old title disputes in the Town of Long Lake between the state and a few hundred longtime local land-owning families, as proposal 4 would do, seems fair enough. Of less agreement among environmentalists but supported by some and crucial for the local economy is the exception to “forever wild” sought through proposal 5 by NYCO Minerals, a mining company in Essex County, to extend its operations to adjacent protected lands. Both involve land exchanges, with significant proposed compensating additions to the Forest Preserve, guided by the state’s priorities and subject to its approval. It’s curious how some hardcore environmentalists take such a tough line through statewide votes on local community matters in the preserve but embrace so eagerly “home rule” in other parts or rural New York, for example where local governments are antifracking. My bottom line: I will vote “Yes” for both of these.
Proposal 6. Judges’ Retirement Age. I don’t have to stop working at 70; most people don’t. Why should a judge, if he or she can still do the job? Permission is sought for judges of the Court of Appeals (our highest court) to serve until 80, if their term of office permits. Supreme Court judgeships will still open up when an incumbent turns 70. But retired judges, whose service already may be extended after retirement for three two-year stints, will be able to get two more of these, and thus go to 80, if certified by court administrators as needed and fit to serve. Some Court of Appeals judges will get a renewed lease on professional life. Governors will get fewer chances to appoint top judges. Reflecting the state’s demographic diversity on the bench may be slowed. This amendment’s approach might not be the most forthright way to address the ever-growing court workload, especially in the family courts downstate, but it’s an improvement. Again, okay by me.
The Bottom Line. On balance, I am happy that there are some things for which the Legislature has to ask permission. It’s a small lesson in humility. The ballot format will likely make these questions hard to find for voters. It’s tough to justify some of them as fundamental, as important enough to be in our constitution and require a statewide vote for revision. But some have true statewide consequences; and each is of great significance to some New Yorkers. With fewer than 15 percent of eligible voters likely to be recorded on some of these measure (and thus just over 7.5 percent deciding them) it’s worth paying attention.
Gerald Benjamin is a distinguished professor of political science at SUNY New Paltz.