Why foes of a state constitutional convention have the upper hand

When New Yorkers decide on Nov. 7 whether to support or oppose calling a constitutional convention, the only mechanism for the people to bypass legislative opposition to popular constitutional reforms, people naturally want to know what issues are at stake. But answering that question is a highly politicized issue on which supporters and opponents strenuously disagree, so understanding how the issues are politicized becomes critical to understanding the issues themselves.

Based on my study of the 14 states with a periodic state constitutional convention referendum, convention opponents have significant advantages in framing the issues, owing to their superior monetary and organizational resources.

The heavily regulated “producer groups” that form the core of the opposition coalition, including more than 50 unions, typically have fewer of what political scientists call “collective action” or “free rider” problems, which better positions them to raise money and organize. This is especially true of government unions, where group membership and dues are mandatory, and are often more than 20 times larger than what a citizen group can charge its members. These producer groups disproportionately join the opposition because of their proven track record of successfully influencing state legislatures and the fear that they would have less control over a constitutional convention. My focus here is on how these monetary and organizational advantages play out in practice given the current media environment.

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Letters to the editor: Opponents have provided their better organized members with easy-to-use templates for writing letters to the editor, and the result has been a flood of opponent letters sticking to a short list of poll-tested phrases and talking points shortly before the referendum. Similar advantages have favored opponents’ phone banking and distribution of yard signs, flyers and car bumper stickers. In New York state, just one opposition organization, NYSUT (which represents all of New York’s unionized teachers), has more members (over 600,000) than the entire supporters’ coalition.

Debates: High-profile debates about an upcoming convention referendum have been hard to organize because the key opposition organizers prefer not to use the debate format to get their message across. For example, a March 21 forum co-sponsored by CUNY was unable to find a representative from the public unions who were mobilizing the opposition. The difficulty getting key opponents to engage in sustained, high-profile public debate weakens what has otherwise been a resource favoring supporters.

Ads: Opponents have consistently used their substantial fundraising advantage to fund superior advertising campaigns. For example, during the 2008 convention referendum in Connecticut, opponents outspent supporters by a ratio of 49:1, with most of the money spent during the last few weeks before the referendum when supporters were still ahead in the polls.  

Ratio of news to non-news coverage: Compared to statewide candidate elections, convention referendums have received relatively little news coverage, partly because they lack newsworthy events such as primary elections, high-profile candidate debates, and early mass media ads. Since the business model of conventional news media requires coverage to appear even-handed, while most other media face no similar penalty for being one-sided, one-sided non-news media grab a disproportionate share of attention in convention referendum campaigns. Given the opposition’s advantage in non-news media, a high ratio of non-news to news coverage favors opponents. 

Secrecy and credit taking: The key political actors that organize the convention opposition prefer to operate in the shadows. For example, American Federation of Teachers President Randi Weingarten, whose organization and affiliates during the last 20 years have spent many millions of dollars opposing state constitutional convention referendums, prefers to promote other organizations and unaffiliated individuals as the opposition’s face. In contrast, Bill Samuels, who runs New York People’s Convention, routinely starts his radio show on the upcoming referendum with “Bill Samuels is leading the effort in New York for a constitutional convention.” Giving credit to other fosters a culture of cooperation among the opposition.

Websites: A consequence of the culture of cooperation among opponents has been a cohesive coalition with a single, convenient website for the public. In contrast, even when supporters form a coalition, they have tended to direct the public to their own scattered websites. When opponents have their own websites, they tend to be directed at their own members, not the public.

Public vs. member messaging: The trade associations that represent the producer groups that form the opposition’s core are more likely than citizen groups to provide different messaging to their members versus the public. This targeted messaging helps mobilize members, including writing letters to the editor, placing yard signs and promoting social media. 

Rhetorical styles: Opponents are seeking to preserve the constitutional status quo; supporters to seek reform. These different goals have resulted in different rhetorical styles. Since the public tends to be risk averse about changing their state constitution – a document often treated as sacred as the Bible – opponents have thrived by sowing fear, uncertainty and doubt (a strategy known as FUD). In contrast, supporters have tended to appeal to the public’s hopes rather than fears. To the extent that the public views state constitutions as sacred documents, opponents’ ability to pursue a FUD strategy gives them an advantage.

Nonpartisan coalition partners: The competing convention coalitions haven’t fit the traditional Democratic and Republican pattern of interest group alliances because the goal of preserving the constitutional status quo crosses party lines. For example, incumbent legislators from both major political parties as well as select Democratic and Republican constituencies have joined the opposition. Similarly, those who believe that they have a popular cause that the Legislature hasn’t responded to, such as nonpartisan good government groups seeking ethics reform, have tended to support a convention. This framing sows confusion among the public. Not only does the public rely on partisan cues to understand politics, but it has been trained to equate bipartisanship with public consensus. Any type of public confusion makes the public more likely to vote “no” on opening up a document it views as sacred, especially when opponents have the larger bipartisan coalition. 

Coalition logrolling: Opponent organizers have had far more economic and political clout than supporters to bring to coalition logrolling efforts, whereby different organizations support each other’s political agenda in the expectation that the other will reciprocate. With such valuable resources to trade, they can ally with popular groups, such as New York’s Planned Parenthood, which would otherwise be an obvious convention beneficiary. Even if good government groups had the resources to offer potential allies a long-term advantageous relationship based on mutual support, such quid pro quos would be viewed as anathema to their core missions. Perhaps no area of convention referendum politics is less well understood than the incentives for logrolling among convention supporters.

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Free publicity for unpopular adversaries: In politics, a commonly employed strategy is to portray adversaries as extremists. The superior resources of convention opponents have given them an advantage in pursuing this strategy. Once opponents have succeeded in getting the media to frame convention issues in terms of unpopular supporters, it becomes a self-fulfilling prophecy as the media serves to legitimize and energize the unpopular groups while discouraging the popular groups who don’t want to waste resources on a hopeless effort. To date, this has not been a major factor in New York’s convention politics. But assuming President Donald Trump continues to be unpopular in New York, many expect the opposition will somehow cast him in this bogeyman role – despite his not yet taking a position on the referendum.

Alliances with unpopular groups: Given that unpopular groups pose a greater risk of being promoted as the public face of convention supporters, coalitions of supporters are more wary of allying with such groups. For example, supporters haven’t aligned with a group that wants upstate New York to secede from the rest of New York, but opponents have allied with the New York State Rifle Association. Indeed, it was the rifle association’s unpopularity that led it to join the opponents’ coalition. As its president explained to his members: “In a constitutional convention, of course, the preponderance of voters is going to make the decisions. … We don’t have the numbers upstate in order to derail the downstate politics.” Note that his explanation would have been a gaffe if expressed to a general audience, as it conflicts with the opposition coalition’s public messaging that a convention would help special interests; that is, interests lacking popular support. 

Campaign timing: As with most election campaigns, campaigning has tended to intensify near election time, and the same is true of convention referendum politics, only amplified. Convention opponents excel at the sound-bite style of campaigning that dominates the days before Election Day. The consistent pattern of convention referendums that have been ahead in the polls until the last few weeks and then lost in a last-minute advertising blitz by the opposition has been striking.

Campaign professionalism: The political professionals who run opponents’ convention referendum campaigns have been part of national organizations that have run many such campaigns and share their knowledge with trusted allies. Supporters, in contrast, have hired staff with less relevant experience.

The public’s decision on whether to call a convention depends on its perception of the types of issues a convention would be likely to address - including legislative term limits, ethics and transparency. The public should understand that this is a highly politicized question currently biased in favor of opponents for systemic reasons.

J.H. Snider is the author of "Does the World Really Belong to the Living? The Decline of the Constitutional Convention in New York and Other U.S. States 1776-2015" and editor of The New York State Constitutional Convention Clearinghouse.