Assemblyman Pushes For Sweeping Solution To Albany 'Breakdown'

John Caher
New York Law Journal
09-13-2004

ALBANY  Seven years after voters soundly defeated a measure to convene a constitutional convention, Assemblyman Richard L. Brodsky is again carrying the torch for a top-to-bottom reform of New York governance.

The colorful and controversial Westchester County Democrat says Albany is so dysfunctional that there is nothing left to do but substantially amend the Constitution or call a convention directed to "reform the institution of government."

On Friday, Mr. Brodsky, a Harvard-educated lawyer and adjunct professor of constitutional law at Pace University Law School, proposed a series of measures that he hopes will at least initiate discussions on updating New York's governmental blueprint, a Constitution last revised in 1938.

"The Constitution of this state worked for about 50 years," Mr. Brodsky said at a press conference that resembled a law and policy seminar. "Society changed. Politics changed. It is now clearly inadequate."

Mr. Brodsky proposed more than a dozen constitutional amendments, addressing everything from budget reform to ethics. That would be his preferred remedy. But if the amendments cannot clear two separately elected Legislatures and a public referendum, as required, Mr. Brodsky would convene a convention.

The convention would be restricted to dealing with the general reforms suggested in the assemblyman's amendments.

Mr. Brodsky is not at all certain that the state could legally restrict or restrain constitutional delegates. So he proposed a change in the delegate selection process that he said would make it far more difficult for special interests to hijack a convention for their own purposes.

"That there is a genuine breakdown in the process of state government and that there is a crisis in public confidence as a result of that, can no longer be argued," he said. "It is clear and obvious to everyone."

Convention Opponents

It was clear and obvious to Mr. Brodsky in 1997, too.

At that time, the state presented voters with the opportunity to compel a constitutional convention, which the Constitution requires it to do every 20 years. Mr. Brodsky was among those urging voters to demand a convention. But he and other proponents  including nearly every daily newspaper in the state  were shot down by a costly and effective advertising campaign in the final weeks before the election.

A wide assortment of special interest groups, including trial lawyers, labor unions, teachers and environmentalists enlisted the League of Women Voters in persuading voters to reject a convention.

Opponents were generally concerned that the same sort of power brokers who controlled Albany then and now would do nothing except spend a lot of money to preserve the status quo.

But they were also concerned that monied interests might commandeer the convention and eliminate some of the extraordinary provisions that are currently enshrined in the Constitution, such as the right to a sound, basic education, preservation of the Adirondack Park land and entitlements for the poor.

In the final month of the campaign, opponents spent lavishly, and a measure that pollsters earlier predicted would pass by a 2-to-1 ratio was defeated by a vote of about 1.3 million to 807,000. With that, some of the most vocal reform advocates essentially threw in the towel.

'Blame Is Everywhere'

Now Mr. Brodsky is back at it, inspired  if that's the right word  by a governmental process that he said has sunk to new lows since 1997. In those seven years, relations between the legislative and executive branches have continued to deteriorate, partially because of court decisions that diminished the role of lawmakers in the budget process, the assemblyman said.

Last month, for example, a Legislature that has not enacted an on-time budget in 20 years approved one later in the year than ever, only to see 195 budget-related gubernatorial vetoes. It appears Governor George E. Pataki will have the last word because, for reasons both logistical and political, an override is unlikely.

"Blame is everywhere," said Mr. Brodsky, who in the past has been vocal in his criticisms of the Republican governor. On Friday, he refused to be drawn into an attack on the executive.

"It is now time for a thorough, civil, idea-based, intelligent, respectful conversation about how we got here and how we get out," he said. "There must be an end to the cynicism, the accusations and the personal attacks. . . . We will not get out of this until we work together and elevate the debate to a discussion of ideas."

In 1997, Senate Majority Leader Joseph L. Bruno, R-Rensselaer County, and Assembly Speaker Sheldon Silver, D-Manhattan, opposed a constitutional convention. Mr. Pataki supported one.

Mr. Silver's office said Friday that the speaker had received Mr. Brodsky's "wide-ranging agenda" and would take it under consideration. Mr. Bruno's office said the majority leader had not seen the proposal and declined comment.

Mr. Brodsky recognizes that many activists are more fearful of starting a reform movement that they cannot control than they are of the status quo they regularly lambaste.

However, the assemblyman said he has attempted to address their concerns by altering the delegate selection process to prevent politicians from controlling the convention. He would also limit the issues that a convention could address, though acknowledging he is not sure that duly elected delegates could be legislatively restricted.

"Although the [restriction] would probably not be legally binding . . . it would begin a process by which the delegates would either commit to staying within that scope or not," Mr. Brodsky said. "I would urge that they do, but in the end a convention could choose to place before the people anything it wanted."

Support Uncertain

Longtime good government advocate Blair Horner, legislative director for the New York Public Interest Research Group (NYPIRG), said he supports Mr. Brodsky's general contention that drastic action is needed to reform Albany.

"The challenge for [Mr. Brodsky] is to create a dynamic where there really will be a public debate, because I think he is right that the public supports these ideas by and large," Mr. Horner said.

However, he said it is unclear whether NYPIRG would back a constitutional convention. Seven years ago, the group was internally torn and did not take a position. Rather, it helped organize a public education campaign through the Public Broadcasting Service.

"If the constitutional convention was hijacked by forces that were not interested in protecting the poor or worker's rights or the Adirondack Park, you could have a constitutional convention that could in fact erode great protections that exist in the state Constitution," Mr. Horner said.

But Mr. Horner also said there is much to be said for the argument that Albany is so dysfunctional that "rolling the dice" with a constitutional convention would be a worthwhile gamble.

 John Caher can be reached at jcaher@amlaw.com.