City Council Votes Itself
A Third Four-Year Term,
Overriding Two Referenda


By Henry J. Stern
October 24, 2008

Twenty-nine members of the City Council voted yesterday to over-rule 586,890 New Yorkers who, in a referendum, had rejected an earlier proposal by the Council to lengthen their eligibility from two terms to three.

The result is considered a victory for Mayor Bloomberg, and it is a victory in the sense that, if the vote had gone the other way, it would have been a rebuff. As it was, it took personal appeals by the mayor to councilmembers who would otherwise have voted No on the bill.

It has been widely reported is that Councilman James Vacca changed his position from No to Yes based on the views of his mother. We had not heard that since the late Congressman Thomas Manton said in 1976 that he had voted No on the gay rights bill because he had been told to do so by his father.

However, it is a victory that may turn out to be Pyrrhic. The phrase derives from King Pyrrhus of Epirus, who fought a battle with the Romans in 280 B.C.E. at Heraclea. He won the battle but lost so many soldiers that, for two millennia, his name has signified a victory that is not worth its cost.

In this case, the mayor’s loss is marginal and reputational. He has always portrayed himself as a truthful person. Part of his appeal is based on the belief that because he is so rich he does not have to lie, cheat, or steal, as lesser persons sometimes feel they must to enhance their assets, relationships or station in life.

People understand that on some issues positions change in the light of new events. ta But this is the mayor so keenly aware of time that he placed dozens of clocks in city offices to count down his remaining days in office. For him to change his mind suddenly and seek 1461 additional days on top of the 2922 he will already have served by the end of his second term is a dramatic reversal of direction.

To attribute this decision to a world financial crisis which has gone on for months is a difficult premise to understand. Surely he knew before last month’s deadline for putting a referendum on the ballot, that there was a significant decline in revenues which would affect New York City’s budget. In fact, he prudently ordered budget cuts to deal with the situation.

The issue before the Council yesterday was often simplified and somewhat distorted by the press as a yes or no vote on Mayor Bloomberg. In fact, many of the No voters are more sympathetic to the mayor than some of the Yes voters. Nor is it a vote on whether he deserves a third term, many No voters had no problem with a third term, if a referendum supported his eligibility. It is the machine hacks who predictably voted es Yes who will be pressured to endorse for the Democratic Mayoral candidate.

The problem here was that the Council took advantage of what may be a legal loophole in order to allow it to over-rule the will of the people. It was certainly not the intention of the authors of the charter to allow this kind of flim-flam, and the Councilmembers were specifically prohibited from lengthening their own terms or in other ways fiddling with the electoral process.

The appropriate way to proceed is through charter revision. The mayor said in his state of the city address in January 2008 that he would appoint such a commission, as he has done three times previously. Unfortunately, he has not yet done so.

Under the existing City Charter, matters to be placed on the November ballot must be approved by the City Clerk sixty days before the election. This year that date was September 5. The mayor waited until that date had passed to announce publicly that he sought re-election and exemption from the charter. The delay precluded the public from voting on the issue this year.

The City Charter itself is a lengthy document, and is properly subject to amendment by the City Council. Probably a two-thirds vote, rather than a simple majority, should be required to amend the city’s basic governing document. But in any event, Section 38 of the Charter forbids the Council to amend those parts of it which deal with duties and powers of the mayor, the length of terms of elective office. In general, it prohibits the Council from mucking around with the election process.

This charter was adopted in 1989 by referendum. It protected the people’s right to vote on issues submitted to them. The charter did not mention term limits, which did not exist at the time, it therefore did not specifically prohibit the Council from repealing or amending them without a referendum, although it clearly would have done so if the possibility had been considered.

In 1993 the Charter was amended by voter-initiated referendum, and eight year term limits were imposed on city elected officials. They were made effective in 2001, so that no one’s term would be cut below eight years. In 1996 the Council proposed to lengthen the eight year period to twelve years. That proposal was defeated in a second referendum.

The Council did not have the effrontery to try to repeal or amend term limits by itself. It recognized the sovereignty of the public on this issue. It also could have foreseen that, if it dared to disregard the public will in that matter, another referendum would be placed on the ballot the next year not only restoring the eight-year term limit and specifically removing the Council’s doubtful authority to over-rule the public by extending its members eligibility for re-election.

Whereas the 1993 referendum reasonably and fairly made its effective date eight years later, in 2001, the Council’s attempt to reverse the two referenda was to take effect immediately. The very people who gained office in 2001 because their predecessors were forced to retire, now, because their own time to rotate off the Council was approaching, sought to change the rules by themselves so they could remain in office. To 89% of the people polled by Quinniapac, that is not an appropriate action. Only 7% supported the move. To pollsters, that is virtual unanimity.

The fight is far from over, there will be lawsuits and appeals to the Justice Department which may or may not succeed. But ultimately, this dispute will be decided by the voters of the City of New York in another referendum, possibly in 2009. There is a Charter provision that if the mayor places a charter revision on the ballot, another referendum cannot be held that year. Mayor Bloomberg has used that device in the past, it forestalls referenda. He has said he will appoint a charter revision commission to report in 2010. If he attempts to appoint another commission in 2009, seeking to prevent a referendum that year, there will be an additional issue to contest, both in the courts and before the presumably Obama-appointed Justice Department, which is likely to have a broader view of citizens’ rights than the Bushies.

You cannot blame the mayor’s advisors for his aggressive attitude. Many of us think that he should be eligible to seek a term three, other mayors have. A referendum on that question can and should be held in the Spring 2009. By attempting to preclude such a referendum, the Mayor and the Council is showing a lack of confidence in the wisdom of the people. They may be uncertain of the result, but that is no reason to waive the principle of popular sovereignty.

An unfortunate by-product of the mayoral extension is a new lease on public office for 35 councilmembers whose second terms will expire next year. They voted 23-12 for the bill to save their skins (a polite word), and provided more than the seven vote margin of victory. The 16 other members voted No by a margin of 10-6.

The prolongation of mediocrity was the price the mayor had to pay for using the Council as his route to over-ride the referenda. In fact, the reports that the vote was a great victory for Bloomberg ignores the fact that the great majority of yes votes were cast by the Incumbent Protection League, members who were grateful (to the extent they can be) that the mayor gave them cover for their naked ambition. Actually, the primary ambition of most of them is simply to stay in place. That is much better and richer than their real-world prospects. It is easy to understand that clinging to office for as long as possible is, for most of them, a course of action far preferable to seeking actual work, or reverting to their prior careers as community organizers.

There is more to write about on this subject that has not been reported elsewhere. But this is enough for one day, even if it leads to a weekend. We’ll be back next week with a further examination of the intricacies of the plot, and its prospects for success. This conflict is far from over. It may be a significant influence in the 2009 campaigns, mainly for Council seats.

There will be some spillover to the mayoral race, but not enough to affect the result. Mayor Bloomberg is popular because of the work he has done for seven years, and he is likely to remain so. New Yorkers make judgments on the entire picture, not on a single action with which they disagree. Besides, although the mayor may be judged less favorably as an abstraction, in an election he will be judged against the competition, which will have to make the case of persuading the voters that they are better qualified to lead the City of New York than he is.

#507 10.24.2008 1636wds

Henry J. Stern
New York Civic
450 Park Avenue South
5th Floor
New York, NY 10016

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