The biggest threat to democracy these days isn’t the faltering executive branch of the United States government. Rather, Gerald Benjamin, founder of the Benjamin Center at SUNY New Paltz, echoes Franklin Roosevelt and says the biggest threat is fear. Fear of losing rights rather than understanding, as he puts it, “We’re living in a moment of great civic engagement. It’s been sparked by Trump and it means people are alive to both the threat to their rights and to the possibility of what can be done.”
And these two poles — fear of what could be lost as well as the possibility of what could be gained — are playing out on the state level in New York State politics this year as the debate over the constitutional convention turns on a single issue: pensions.
To recap, a constitutional convention can only be held in New York State once every 20 years. This November 7th voters will have the chance, on the back of their ballots, to vote in favor or oppose a convention. Presuming voters say yes, next November delegates will be chosen and upon convening in 2019, will have the opportunity to revise the state constitution. The last successful convention was held 79 years ago, meaning New Yorkers are living under a playbook that’s antique, that barely acknowledges some modern rights, and fails to recognize many modern threats, from privacy intrusions to reproductive and gender equity issues.
But the entire debate about whether to hold a convention, Benjamin says, is turning on the notion that public employees could lose their pensions as the result of a convention. It’s a dishonest argument by their leaders because rather than tell them what they could gain by amending the constitution they’re only being told what they could lose — and they cannot lose their pensions, since they are guaranteed both by the U.S. constitution and the state constitution.
The reason is that the U.S. constitution stipulates that the state cannot void the obligation of a contract. The right of public employees to a pension benefit, both present and future, is a contract. And contract law is so deeply woven into the fabric of the way the U.S. functions as capitalist system, even staunch anti-unionist sentiment doesn’t stand a chance of altering the binding nature of this relationship. Trying to write a plank out of a constitutional convention that challenged contract law would be shot down by legal challenge long before it could ever be enacted.
WHY YOUR PENSION IS NOT AT RISK UNDER A CON CON
Beyond the fact that a constitutional convention even in the reddest state couldn’t unravel the legacy of contract law dating to the founding of the nation, Benjamin says New York is not Wisconsin, which union forces in New York hold up as a bogeyman. In 2015 Wisconsin became a “right to work” state, undermining its union obligations, and a federal appeals court upheld the legality of the decision this past summer. But it’s important to note that what that action really created was a weakening of unions in that state, whereby non-union employees aren’t obligated to pay union dues for benefits they accrue under collective bargaining agreements. This weakens unions broadly, but it didn’t redefine existing pension contracts.
Still, union leaders in New York argue that with the Supreme Court likely to overturn a 1977 decision that more broadly bound non-union members to pay union dues, the thinking goes that we’re living in an era hostile to public-sector employees.
Benjamin says that’s true, but it’s still disingenuous to claim any equivalency with what might happen during a constitutional convention.
Why? Simple math. “We have a Democratic majority in the NYS Senate,” says Benjamin. “They don’t caucus together, but New Yorkers are registered as Democrats by a margin of over two to one.”
And because every NYS Senate district gets three representatives at the convention, Benjamin says every prediction strongly favors a heavily liberal contingent. While the NYS Senate is gerrymandered, most districts that send Republicans to Albany are “purple” or “light red,” only about 55/45 Republican. Most districts that send Democrats are far more secure, that is “dark blue.” Meaning the Republican held districts are more likely to split, sending at least one Democrat to the convention, and safer, left-leaning districts will most likely send three Democratic delegates. And there are 15 statewide delegates, as well. For those at-large seats, Benjamin reminds us, “We haven’t elected a single statewide Republican to office since George Pataki.”
Another argument made by pro-union forces is that members of the current legislature and locally elected officeholders will hijack the convention, possibly tilting the body farther right.
But even if that happened, there’s still a lack of logical follow through that such a body would undermine union causes. “We live in the most pro-union state in the country. If I were a delegate I would not mess with union pensions because I know that two million people statewide would vote against it,” Benjamin says, noting that any plank adopted by the convention will get a final vote by the citizenry.
Benjamin argues that what union leaders aren’t telling their members is what could be gained by a convention. For instance, defined benefit plans (like current pensions), rather than defined contribution plans (like 401ks) could actually be constitutionally strengthened and guaranteed to public employees.
Another goal should be to codify the tax-free status of pension funds. Unlike 401ks, current New York State pension funds aren’t taxed when beneficiaries draw them down upon retirement. But this isn’t backstopped by the constitution, as it could be. “It would guarantee that this greater spending power that public employees gain is protected,” Benjamin says.
Again, these are opportunities for union members and their leaders to strengthen and further enhance their say in government. Instead, however, union leaders are protecting their stake in the system in Albany. This shields their own narrow power structure, but does nothing to increase the footprint of labor, or to attract potential new membership in the future.
Part of an ongoing series on the issues surrounding the constitutional convention ballot question.