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    A Review of the New Constitutional Proposal

    I’d like to provide to the undergraduate student body my review of the new constitutional proposal on the ballot October 22nd through the 26th. As far as I can see, the proposal makes a lot of important changes and overall is very good. It has a supremacy clause, a necessary and proper clause, specific limits of power to each of the branches, and the Senate gets to approve all contracts and binding agreements which the President enters into (kind of like a treaty power), all of which our current constitution lacks. I’m glad to see these were added without a problem.

    It gets rid of advisory funding referenda – a non-binding mechanism whereby a club can have on the ballot a resolution which states they should get an increase in funding – which is good because the Northern District Court of New York recently found these to be unconstitutional. I’m very glad that this has been removed without a problem.

    It eliminates needless elected positions such as the class representatives and other Executive Council positions which instead may be enacted by law by the Senate. So for example, if an executive branch position administering clubs and organizations is necessary, then the Senate can make a bill and establish that office. The beauty of not having them in the Constitution is that we’re not stuck with them whether they do a good job or not, and they can be fired (instead of arduous impeachment proceedings). This is good, too, because the Council has classically stood in the way of good changes to the Constitution and removing their power to amend the Constitution, which the proposal also does gets them out of the business of legislation and into the business of enforcing laws. It’s amazing that President Antonelli and Vice President Shapiro got this constitutional proposal through the Council, especially since it eliminates 8 of 11 positions. That was quite a hurdle they cleared.

    However, there are three flaws that I see. First, the Senate may by a 2/3 vote expel any member under Article III, Section 5. 4., which means to remove them from office. Whereas under the proposal the Senate may punish its members for disorderly behavior, a vote to expel a Senator by 2/3 majority has no criteria whatsoever, meaning the Senator could not even appeal this decision to the courts. So, theoretically, if one party could get a great enough majority, they could just expel members of a minority party without cause. Though I have been assured by Vice President Shapiro that under this clause members of the Senate could only be expelled for disorderly behavior as defined by law, I believe that textually this clause is ambiguous as to the grounds for expulsion, even though it was pulled directly from the Federal Constitution. The clause itself reads, ‘The Senate may punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.’ You can decide for yourself if it’s ambiguous or not.

    Second, and this is very important, there is no mode of appeal for funding decisions made by the Senate. Though there is a clause which prohibits viewpoint discrimination and favoritism in the budgeting process, there is no check on the power of the Senate to make funding decisions. This is because in Article V, Section 2. 3. it states that ‘[T]he Senate reserves the sole power to determine funding, and the judicial power of the Undergraduate Student Government shall not be construed to extend to any suit in law or equity, commenced or prosecuted against the Undergraduate Student Government or its agents by members of the Undergraduate Student Government, or outside entities, in regards to the level of funding received by the organizations.’ Again, I have been assured by Vice President Shapiro that I have misinterpreted this clause, and that clubs could still appeal the entire USG budget if the Senate does not follow viewpoint neutrality, due process, or the Financial Bylaws, but you can decide if it’s ambiguous or not.

    Because of the wording, I am convinced that though the intent of the proposal may be that clubs could appeal the budget as a whole, there is no expression of that sentiment in the proposal itself and that therefore one day, perhaps not this year or next, this will come into dispute and that textually, the right to appeal the entire budget would disappear. I can understand shifting the ability of the courts from looking at individual funding decisions to only being able to overturn the budget as a whole, but after re-reading Article V, I cannot find a clear expression that the budget as a whole may be disputed. I just see that under Section 2. 3. that the ‘Senate reserves the sole power to determine funding’. I could easily see a court using textual guidance to say that this clearly makes the entire budget beyond appeal. If this was re-worded to express the true intent, I could reconsider supporting it, but I’m always mindful that in the USG, clauses have been (and probably will be) interpreted quite literally.

    When writing law, especially for the USG, I have always been mindful that ambiguity of the laws has been a recipe for disaster. And we have had ambiguities and troublesome clauses of the Constitution before. Advisory referenda that was advisory only when the Senate and Council said so. The University administration didn’t think we could have a binding referendum on the amount of the student activity fee even though they had encouraged us to overturn a binding referendum raising the amount of the fee when it failed. It was thought that the Senate had to vote twice in two consecutive meetings to override a veto. The Senate could enact law by a majority of those present and voting at the Senate though the Constitution said filled seats. The University administration would question whether it actually took a 2/3 majority of the entire undergraduate population to pass an amendment to the Constitution.

    If it’s ever interpreted that clubs have no right to appeal the entire budget to the Supreme Court, this would render the protection against viewpoint discrimination and favoritism practically meaningless, and no matter how egregiously the Senate violates either this clause or any laws which governs the budgeting criteria for clubs and any protections which may be put into law, the club would have no remedy inside of the USG. They would be forced to sue the entire USG in a real court, such as has happened in Rosenberger v. University of Virginia, Southworth v. Board of Regents of the University of Wisconsin System, and Amidon v. Albany. These are Federal court cases which enumerate that student governments must be viewpoint neutral, and though this proposal provides for viewpoint neutrality, it provides no means of enforcing it when viewpoint discrimination or favoritism actually occurs within the realm of the USG because it’s not even clear if the overall budget may be challenged under the Supreme Court’s jurisdiction.

    Finally, and most importantly, the protections for clubs and organizations which are currently in the Constitution have been taken out. 8 NYCRR 302.14, subsection (c)(1)(a) states in part that ‘The constitution and by-laws of such student government shall specify the criteria governing eligibility for funding of and allocations to student organizations from student activities fees.’ Now, under the proposal there are no criteria governing the eligibility of clubs to receive funding, nor any criteria for the USG to make allocations to clubs. This has to be in there under New York State law, and under the terms of the proposal itself which binds itself to NYS law. Once more, Vice President Shapiro has assured me that 8 NYCRR 302.14, subsection (c)(1)(a) under New York State law does not mean that the budgeting criteria needs to actually be in the Constitution of the USG, just in our governing documents. He also insisted that even if it does mean that it needs to be in the Constitution, that the criteria for funding is in there since the Constitution binds itself to State and Federal standards, since there is a protection a
    gainst viewpoint discrimination and favoritism in the Constitution, and since there is an enumerated power by which the Senate can make law which establishes criteria governing the eligibility for funding of and allocations to student organizations. You can read the clause of NYS law yourself above, and determine whether the criteria for funding needs to be in the Constitution or not.

    Currently, the Constitution has the budgeting criteria under Article II, Section 2, which enumerates the rights of clubs and organizations. Whether the criteria for funding needs to be in the constitution or not according to 8 NYCRR 302.14, I began to think back to just how bad the laws of the USG could get for clubs without inherent constitutional and legal protections. When I got started, religious and political clubs were still disallowed even the right to funding on the grounds that they were somehow exclusive. Even if they adjusted their membership clauses, allowed everybody and anybody to attend their events, they were still denied funding by the law itself.

    The new proposal simply enumerates viewpoint neutrality (as opposed to inherent protections for religious and political speech being funded), but there is nothing in it that would let future senators know what that even means, or what a viewpoint neutral budgeting criteria would even look like.

    ‘Viewpoint neutrality’ is one of the most often used and misapplied concepts in the USG. It’s been used to describe the inception of the new off-campus travel policy for example, though that has really nothing to do at all with viewpoint neutrality, it has to do with considerations of fiscal prudence. It’s been used to describe the position of the Elections Board as it relates to supporting candidates publicly by board members. And, even last year, despite the clear protections currently in the Constitution for clubs to carry out their missions, goals, and activities, it was still thought that religious texts were exclusive and could not be funded by at least a few members of the Senate.

    And as it relates to losing the rights of clubs out of the Constitution, without Article II, Section 3.C. for example, which allows clubs to use their funding to carry out their missions, goals, and activities, there would be nothing to guarantee to clubs that once granted a budget their vouchers could not be rejected on erroneous grounds. So, for example, clubs could not even fight the new off-campus travel policy if it really did prevent them from carrying out their missions when it is enforced out of the Treasurer’s office because ‘being fiscally responsible’ will take priority over fulfilling club’s missions under the current administration. Without that protection, there’s nothing to prevent the Senate from preventing clubs from fulfilling their missions. As long as it’s viewpoint neutral and applies the principle of equal protection, or in other words, so long as it’s applied across the board to all organizations, the Senate under the new constitutional proposal could impose more and more onerous obligations on clubs and organizations.

    In short, there will be nothing to prevent the Senate from running roughshod over the clubs. The new President Pro Tempore said it himself at the last meeting of the Senate to the effect of (and I’m paraphrasing), ‘Why should we be forced to fund clubs to carry out their missions?’ Which is a very legitimate question to ask. One could hold fiscal responsibility to be more important than clubs fulfilling their missions. I’ve decided, however, that in reality that I do not, and that therefore I cannot support this proposal. In the Constitutionalist No. 1, a document supporting the establishment of the new constitutional proposal, the author writes that ‘Clubs do not have rights’hellip;’ But they do, under the current laws of the USG, clubs do have rights. And if clubs and organizations value those rights, their leadership and memberships ought to cast votes against this new constitutional proposal. Though this proposal is superior in many ways, its deficiencies for clubs outweigh any benefit the USG may gain in its efficiency. Removing the rights of clubs and organizations from the Constitution is a deal-breaker for me. If the authors of the constitutional proposal are writing now that clubs do not have rights, repealing those rights from law which have been enacted cannot be far behind.

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