The necessity for constitutional change.

• Author: Benjamin, Gerald
• Position: Symposium: Refinement or Reinvention: The State of Reform in New York

Thank you for the opportunity to be here with you today. For us reformers, the fact of this conference is reassuring, as is the fact that there are still some of us--quite a few of us--here for the afternoon session.

My daughter Elizabeth Benjamin covers state politics for the Albany Times Union. We were talking during the Christmas holiday. The ill-conceived budget amendment to the state constitution had just been defeated. (1) I asked, "what will be the focus of the coming session?" She responded, "reform is off the agenda; reform is dead." I hastened to assure her that she was wrong.

It is an interesting question, the degree to which persistent attention can be maintained in the legislature on questions of structural change in government. Certainly, representative institutions in democratic systems, flawed or not, have limited capacity to attend to a large number of things at the same time. Every year in New York lots of bills get passed, but two or three major matters tend to occupy the legislature's attention. The agenda is often defined by specific events of the moment or by action-forcing external circumstances.

One of my colleagues once called all the bills that are introduced, all the policy ideas that swirl around the capitol, "the primal stew of legislation." Those of us who are interested in political and governmental reform first must think about how to assure that needed structural reforms in state government are in this year's first serving of that stew, and each year's until success is achieved.

There are a few things that we can count on. One is the regular cycles of state politics. For example, redistricting and reapportionment has to happen every ten years, following the decennial census. (2) The matter must be addressed. If the legislature does not do it, the courts will. The potential threat to their political survival focuses the attention of all legislators. When this happens the public gets to see entrenched self-interest operating: keeping incumbents and partisan majorities in place. The gross and palpable politics of self-interest evident in the way we do redistricting in New York fuels demands for reform. John Faso is notable for the energy he invested as the Republican Minority Leader in the legislature in making sure that we understood how unfair, how misplaced, and how pathological our redistricting practice was and is in New York. (3)

Actors outside of the state's peak political institutions may also be friends of reform. Two of these are the state and federal courts. We are now in a dynamic moment for New York's separation of powers system because of the recent decision by the Court of Appeals about the distribution of powers in our state budgetary process. (4) The legislature is unhappy and I do not think the legislature will leave the matter alone, nor should it.

I was very vigorously engaged in opposing the constitutional amendment that came forward from the legislature because I thought it destroyed our executive budget process, a process that I regard as the most important governmental reform in New York of the twentieth century. But I also said in that time, and continue to believe, that there is an undesirable imbalance in executive/legislative power in New York that has to be redressed through reassertion of a more substantial role for the legislature in governing.

Third, we reformers are served by the persistence of our system in highlighting structural problems by its dysfunction. We heard earlier today about the Help America Vote Act of 2002 ("HAVA"). (5) It happens that a book was recently sent to me for review that describes and analyzes the implementation of HAVA in nine different states, including New York. (6) Our state was listed among those that had made modest progress, that is, was in the last category, (7) I finished reading that book on the day that the threat of federal litigation arose because of New York's failure to meet the requirements of federal law. (8) We were last again. It is interesting that a New Yorker gets to review this book.

We are in a moment where we are under less pressure, where there is some money around, where we have the capacity to be more distributive in budgeting, and when decisions are more easily reached than in a time of scarcity. Yet HAVA non-compliance reminds us that there are fundamental structural problems, that there is lack of performance, and that there needs to be persistent attentiveness to the reform agenda.

My special task today is to talk about why I think state constitutional reform is desirable. I have spent a lot of my life on this question and have mercilessly produced a very substantial written record. You can read what I think. (9) I am therefore going to pass over, rather lightly, some of the substantive points in my outline so that I can get to some of the process issues that are barriers to constitutional change, and talk about how they might be addressed.

But first let me acknowledge that we can do lots of good things by statute and by rule changes in the legislature. One of the strengths of the Brennan Report was that many of the important changes it proposed could be done by each house independently through rules changes. (10) Neither two-house nor two-branch agreements were required. (11) The challenge in that report to each house was something like: "You can really do these things; do them and demonstrate your commitment to these ideas."

One of the problems with constitutional change is that it is hard to do. This is an understandable source of skepticism and resistance. We heard this morning that good things can be done by adhering to the blueprint that we have. But sometimes a blueprint made more than a century ago needs revision, an addition needs to be built on to the house, or wiring and plumbing need to be redesigned and modernized. It is costly to do and hard to live in the house while it is being upgraded but necessary if we still want to live in the house. The scope of what we need to achieve in New York cannot be done without serious attention to altering the blueprint and rebuilding parts of the house.

Some of the structural changes that we need are obvious and have been heavily discussed. Others are less obvious. For example, to resolve the relationship issue between...