Many unions have been telling their members that a New York state Constitutional Convention could be a catastrophe for the rights union members enjoy. By opening up the constitution to revision, anything could be taken away. While the confusion is understandable — it’s a complicated issue — it’s actually an unsubstantiated claim. We’re here to explain why a New York Constitutional Convention will not hurt unions, and how it could, instead, lead to strides forward for workers’ rights.
The Difference Between Legislation and Constitutional Law
First, the basics: it’s important to understand the difference between the constitution and legislation.
- The New York State Constitution is our state’s founding document, which declares the basic rights of our citizens, outlines the way our government and public offices should operate, and serves as the basis for all of our legislation. Constitutions are generally short, sweet, and to the point. The original U.S. Constitution is only 4 pages long!
- Legislation is where the details get worked out. So, if our constitution says we all have an equal shot at life, liberty, and the pursuit of happiness, our lawmakers pass legislation to iron out the details of how exactly that happens. Legislation is much easier to propose, amend, add to or delete from than constitutional law.
A New York State Constitutional Convention only allows edits to the state constitution, not to legislation. In a New York Con Con, we can’t just change the laws willy-nilly.
What are unions afraid of losing?
There are a few common concerns that union members and public employees bring up when discussing a Con Con.
Pensions. During the 1938 State Con Con, our New York delegates wrote into the constitution that pensions are regarded as a contractual obligation between the state and its public employees. And guess why they did that? The U.S. Constitution has a clause, known as the Contract Clause, which says that no state can alter a contractual obligation. Once our public employees pensions were enshrined in our state constitution as contractual, they were protected by the federal constitution. Any change to get rid of pensions in a Con Con would go against the U.S. Constitution and be shot down in court.
Income taxes on pensions. The state constitution protects public employees from getting their pension benefits taxed, and if this were changed, it would again be in violation of the Contract Clause in the U.S. Constitution. The pensions of non-public employees are currently not protected constitutionally, so there’s no way they could be taken away in a Con Con.
Collective Bargaining. Currently, the NY constitution gives public workers the right to unionize, but it does NOT require that public employers actually listen to their complaints and compromise with them. That’s protected — you guessed it — legislatively, in the Taylor Law. In short, since this isn’t even in the constitution in the first place, there’s no right to take away.
Health benefits. Again, this is not protected in the constitution. (During a New York Con Con, we hope to add it in!) There’s nothing to be taken away here, because nothing exists in the first place.
Why is my Union telling me otherwise?
It’s a confusing topic, to be sure. Many unions assume that because their rights were given to them in past Con Cons, that those rights can also be taken away in a Con Con. While that seems logical, it’s just not the way that the law works.
In addition, if New Yorkers do vote Yes to hold a Convention, unions know that they’ll have to put a lot of effort into running delegates, to ensure they can get the most out of a Convention as well. By convincing you to vote no, they’ll avoid that whole hassle.
Okay, but how can a convention help my union?
The NY State Legislature has already tried to chip away at union rights — and pensions — using legislation. They are able to break up the pension pool into tiers, which they did most recently in 2012, altering the amounts that workers can get if they enter the pension pool after 2016. Again, all of that has been done legislatively, not constitutionally. Therefore, we could edit the language in the Constitution during a convention to protect against these changes by our lawmakers.
Not to mention, when lawmakers in NY are accused of crimes and forced to resign…they still get their pensions. Their taxpayer-funded pensions! In a Con Con, we can add in the right for judges strip lawmakers of their pensions as a punishment for their crimes, leaving more money in the pot for honest workers.
And we can’t forget about non-union workers (which is 77% of the NY workforce)…in a Con Con, we could require that the minimum wage is proportional to the cost of living in one of the most expensive cities in the country.
Lastly, when it comes to influencing voters, unions are some of the most powerful entities in the state. Public opinion of New Yorkers toward unions is very favorable. If unions run some of their members as delegates, the odds that they’ll get elected are high. Therefore, they’ll have representatives in the room with their best interests at heart.
And finally: What happens when we put the law in the hands of New Yorkers?
The last step of a Con Con is that New Yorkers get to vote on the proposed amendments from the delegates. Each change is presented on the ballot as a “yes” or “no,” and the changes are only are accepted if a majority of New Yorkers vote Yes.
What does this mean?
New Yorkers have always been well ahead of the other states in terms of union support and membership. 23.6% of employed New Yorkers are union members — more than any other state in the country (by far). During the Great Recession, when union approval was at an all-time low across the country (leading to states like Wisconsin and Michigan curtailing union rights), a majority of New Yorkers approved of unions and of strengthening their rights.
Once more for the folks in the back: New York is the most union-friendly state in our nation. Since all changes to the constitution require popular vote approval, our union rights aren’t going anywhere! We at Forward March don’t support any cuts to union benefits, and neither do the majority of New Yorkers.
Moreover, based on the 2016 Election results, we can count on a majority of Democratic delegates. Our Con Con delegates are chosen by Senate district — three delegates per district. In 2016, 63% of our Senate districts voted for Hillary Clinton. On top of those delegates, there are 15 extra delegates chosen by a statewide popular vote. In 2016, Clinton won New York’s popular vote by over 1.7 million people. With those numbers, plus the fact that Trump’s approval rating since the election has plummeted to 29% in New York State, we can rightfully assume a large majority of progressive, Democratic delegates will be voted in to our convention, and that New Yorkers will not approve of any amendments that hurt unions or their members.
When Rhetoric Attempts to Trump Reality: Why a Constitutional Convention Would Not Take Away Public Employee Right, by the Rockefeller Institute of Government
Forget Hope vs Fear, What Does Math Tell New Yorkers about a Constitutional Convention by Sanctuary State NY