Brennan Study Criticizes Legislature As 'Most Dysfunctional,' Urges Reform
By John Caher, New York Law Journal 07-22-2004

What we have here is something that documents in a way that has never been done before just how bad the New York state Legislature is compared to other state legislatures," Mr. McMahon said.

At an Albany press conference, the Brennan Center released "The New York State Legislative Process: An Evaluation and Blueprint for Reform." It was written primarily by Jeremy M. Creelan, associate counsel at the center, with his research assistant, Laura M. Moulton. (It is online at www.brennancenter.org).

The report documents the relative irrelevance of rank-and-file Senate and Assembly members, who have little to say and less incentive to challenge the leaders.

Mr. McMahon took some exception to parts of the report, indicating that rank-and-file members are shut out of decision-making.

"I think what really happens is that members quite happily block themselves in a windowless room, because what this system serves to do is give cover," Mr. McMahon said.

Mr. Creelan and Ms. Moulton looked at Congress and other state legislatures and found that New York's is singularly insular and uniquely designed to inhibit accountability, open debate and competition. New York is the only state to allow "empty seat" voting, whereby Assembly and Senate members who do not show up for a vote are automatically recorded as voting in lockstep with Assembly Speaker Sheldon Silver, D-Manhattan, and Senate Majority Leader Joseph L. Bruno, R-Rensselaer County, according to the report.

"Most rank-and-file legislators are shut out of the legislative process and play an extremely limited role in developing and passing final legislation," the report said.

For instance, Mr. Creelan said, legislators lack the power to hold committee hearings on pending bills, have no control over whether a bill reaches the floor for a vote, cannot debate or amend a bill on the floor without directly challenging the party leader and have no role in reconciling bills from the two houses.

He said legislators "occupy the unenviable position of either objecting to the legislative process and alienating the leaders of their own party or short-changing the people of New York State by acquiescing in the passage of legislation which they have neither developed, debated, amended, or in some cases, even read."

What is more, Mr. Creelan said in the report, legislators cannot take a public stand against the status quo without spotlighting their own impotency.

The Brennan Center's blueprint for reform, drafted in conjunction with Professor Eric Lane of Hofstra Law School and others, centers on four key recommendations:

* Make the committee system the focal point for most legislative activity. The plan also would also give committee chairs the power to hire and fire their own staff.

* Ensure that the leader of a House majority is not able to block a widely supported bill simply by refusing to permit a floor vote. Under the proposal, every bill reported out of committee would be presented to the full chamber within 60 days. Now, only those bills endorsed by Mr. Silver and Mr. Bruno are put up for a vote, and those bills pass. Often, years go by without a single bill being defeated in either chamber, the Brennan Center found.

* Require members to be present to vote.

* Mandate conference committees when the two chambers pass similar but not identical bills and the lead sponsors request conciliation.

Documented Inactivity

The report was promptly endorsed by several good-government advocates, including: Cleary Gottlieb Steen & Hamilton partner Evan A. Davis, former counsel to Governor Mario M. Cuomo and a past president of the City Bar Association; Jo Brill, director of state studies at the Citizens Budget Commission; Frank Mauro, director of the Fiscal Policy Institute and former secretary to the Assembly Ways and Means Committee; Blair Horner of the New York Public Interest Research Group; Rachel Leon of Common Cause; Barbara Bartoletti of the state League of Women Voters; Dean Gerald Benjamin of the College of Liberal Arts & Sciences at the State University at New Paltz; and Mr. McMahon.

Mr. Creelan acknowledged that reform could be elusive, especially since there is little motive for those who control the current system to alter that which keeps them in power. However, he said the Brennan Center, with private donations, intends to push its case through the media and direct contacts with policy-makers.

"We believe the level of frustration is at a historic high," Mr. Creelan said. "We think it is time to bring people together around one set of clear reforms. . . . Today is the beginning of a long and intense campaign."

The Legislature is in an extraordinarily unproductive year, even by Albany standards.

Lawmakers and Governor George E. Pataki have not agreed on a budget, although one was due April 1. They have not figured out how to reform the Rockefeller Drug Laws, even though all sides agree they should be reformed. They have yet to deal with a Court of Appeals decision last year that gave them until until next Friday to address a major educational funding problem.

The Legislature will be in session today to consider education funding, but mainly because Mr. Pataki earlier this week invoked a constitutional power to bring lawmakers back to Albany. However, while Mr. Pataki has set the agenda, he cannot compel action - and the Assembly leadership has strongly indicated it will not pass the governor's education aid package.

Mr. McMahon said that when he worked in the Legislature, there were lawmakers, mainly in the minority, who believed that the existing system should be scrapped.

"One thing we lacked, although we felt we had the facts on our side, was this sort of documentary evidence of just how bad it is and what the effects are," he said. "I think that is an important step forward in bringing this issue to the tipping point."

- John Caher can be reached at jcaher@amlaw.com.

For Immediate Release
Thursday, September 30, 2004

Contact Information:
Natalia Kennedy, Brennan Center, (212) 998-6736

BRENNAN CENTER COMMENTS ON BRUNO REFORM TASK FORCE

New York, NY - Scott Schell, spokesman for the Brennan Center for Justice, commented today on Senate Majority Leader Joseph Bruno's announcement of a task force on government reform:

"We welcome the Majority Leader's announcement. This is yet another powerful sign that the leaders in Albany have heard the calls from the people of New York for a more open, more responsive, and more effective Legislature. We look forward to examining the work of the task force.

Make no mistake. We are long past the time when New Yorkers will be fooled by finger pointing at the other chamber -- or at the Governor -- as an excuse for inaction. The Brennan Center's reform proposals advanced by Assemblymember Scott Stringer come in the form of rules changes. These rules changes can be adopted by the independent authority of the Assembly or the Senate. If there is no progress, the members of each body can and should be held accountable."

For additional information about efforts to reform Albany, please visit Reforming the NYS Legislature.

The New York State Legislative Process: An Evaluation and Blueprint for Reform


For Immediate Release
Tuesday, September 28, 2004
Contact Information:
Susannah Vickers, Stringer Office 917-923-2078 or 212-873-6368
Sam Hoyt, 716-316-4698
Scott Schell, Brennan Center 212-998-6318 or 917-226-0237

ASSEMBLYMEMBERS SCOTT STRINGER, SAM HOYT AND
FIFTEEN OTHER MAJORITY MEMBERS INTRODUCE
LANDMARK ASSEMBLY RULES CHANGE

Brennan Center for Justice, NYPIRG, Citizens Budget Commission,
Citizens Union and Business Groups Support Reform Proposal

New York, NY - Assemblymember Scott Stringer (D-Manhattan) today introduced a binding resolution to change the rules of the State Assembly that will increase transparency, participation and effectiveness in the operations of the chamber. Assemblymember Sam Hoyt (D-Buffalo) and fifteen other majority members of the Assembly co-sponsor what is the most significant legislative reform measure to enjoy serious support in Albany.

The Stringer proposal is based on the major recommendations of the Brennan Center for Justice in its landmark report, The New York State Legislative Process: An Evaluation and Blueprint for Reform. The resolution's key provisions would:

Give each Committee the power to hire and fire its own staff. Currently, that authority resides with the Speaker.

Require all floor votes to be slow roll call votes, with members' votes counted only when members are present in the chamber and personally indicate whether they wish to vote "aye" or "nay." Few votes are currently subject to such a requirement and "empty chair voting" is a commonplace.

Require a public hearing upon the petition of one-quarter of a committee's members, unless the petition is rejected by a majority vote of the committee's members.

Require a two-thirds vote of the Assembly to accept a "Message of Necessity," a parliamentary tool that is used to force votes without giving legislators time to read last-minute budgets and legislation.

Make Motions to Discharge a viable tool to release bills from committee gridlock.

Make attendance at committee meetings mandatory.
Stringer's proposal was introduced as a binding "resolution," rather than a "bill," because it can be passed and implemented in the Assembly without Senate action, thus avoiding the chamber-to-chamber finger-pointing that is often used to defend legislative inaction. And while most reform measure enjoy scant support from members of either chamber's majority party, the Stringer resolution was co-sponsored by Democratic Assembly members from across the State, including four committee chairs. If history and the experience of other states serve as a guide, then it is reasonable to expect that reform in one house of the Legislature may be followed by reform in the other.

Business and civic organizations from across the State that support Mr. Stringer's effort include the Buffalo-Niagara Partnership, Syracuse Chamber of Commerce, Westchester Chamber of Commerce, Brennan Center for Justice, New York Public Interest Research Group (NYPIRG), Citizens Budget Commission and Citizens Union.

Assemblymember Stringer said: "When we fail to fix school funding, fail to increase the minimum wage or fail to pass an on-time budget, the Legislature fails New York's working families. The call for reform has now reached a fevered pitch. It has created a unique window for action, a perfect storm for Albany reform. After a century of dysfunction, we are stepping up and seizing this tremendous opportunity. I hope all of my colleagues, and the Speaker, will join us in our effort change the way we do business in Albany and better serve our constituents."

Assemblymember Hoyt said: "This resolution will give real power to individual legislators, not just the leadership. We'll be able to take votes and hold hearings on the issues that our constituents care about. And we'll be held accountable. The resolution will enable voters to know where their representatives stand-and if we are, in fact, standing in the Assembly chamber when votes are being taken. Taken individually, these may seem like technical changes, but together, they represent historic reform."

Scott Schell, of the Brennan Center, said: "Since our proposals were made public in July, support from around the state has exceeded our greatest hopes. Today, longtime Albany observers who said reform was a pipe dream are being proved wrong. With these measures introduced by Scott Stringer and Sam Hoyt, every member of the Assembly now has a clear choice: sign on to the resolution and become part of historic change demanded by the people of New York. Or remain part of the problem."

In a prepared statement, The Business Council of Westchester said that it "applauds all the legislators who have taken a leadership role to begin this crucial reform process.

Blair Horner, NYPIRG, said: "The proposed rule changes constitute important reforms. Obviously, the next steps must include agreement within the Assembly and with the Senate if they are to have any impact. Once the legislature acts, all eyes should turn to the executive which also needs to be more open and accountable."

Diana Fortuna, President, Citizens Budget Commission, stated: "The reform proposal being introduced today is a major step towards fixing New York State's fiscal practices."

For a complete list of the resolution's sponsors and text of the resolution, click here.

The Brennan Center for Justice at NYU School of Law, founded in 1995, unites thinkers and advocates in pursuit of a vision of inclusive and effective democracy. Its mission is to develop and implement an innovative, nonpartisan agenda of scholarship, public education, and legal action that promotes equality and human dignity, while safeguarding fundamental freedoms.
Please visit www.brennancenter.org


Shadow Troika Rules
Pataki, Silver & Bruno
Richard Schwartz, DAILY NEWS Opinion, June 22, 2004

Tonight, 211 legislators pack up and head for their hammocks for the summer. They'll have plenty of time to flip burgers and swat skeeters. Somehow, the last six months just wasn't enough time for them to pass a budget, figure out how to fix school spending or tame the wretched Rockefeller drug laws.
In honesty, it's not as though they got nothing done. They did pass breakthrough legislation on the pressing matter of tongue splitting. (Tongue studs are so '90s.) The Legislature won't hear of it unless it's performed by a licensed tongue-splitter. So, we've got to thank them for that historic reform.

But why nothing else? Look to the three real powers behind Assembly Speaker Sheldon Silver, Senate Majority Leader Joe Bruno and Gov. Pataki. I speak of the shadow troika of trial lawyers, unionists and hospital operators who issue orders to the ruling troika of Silver, Bruno and Pataki.

If you want to know why you can't lease a car in New York, ask New York State Trial Lawyers Association chief Martin Edelman (or his trial lawyer pal, Silver). His group likes the fact that New York maintains an arcane statute that holds deep-pocketed leasing companies liable when a driver gets into an accident.

Why limit their claims to private individuals when the treasuries of Ford and GM can be plundered? Ergo, most automakers have stopped leasing cars in the Empire State. And your Legislature wouldn't dare disappoint the lawyers association, which also happens to be one of Albany's biggest sources of campaign bucks.

Maybe you were expecting Albany to strike a deal for more funds for city schools, as the courts have ordered them to do. Well, they couldn't arrive at a number fat enough to please teachers union chief Randi Weingarten, who controls a river of campaign funds and votes. So she told her man in the capital, Silver, no deal. (In truth, Pataki and Bruno are also her men, depending on the issue.)

And what happened to the push to reform the state budget process that Silver and Bruno floated after they were widely ridiculed in April for missing the state budget deadline for the 20th consecutive year? The thought was to have an automatic contingency budget if the Legislature failed to pass one on time.

Unfortunately, the plan didn't guarantee the hospital industry would get all the state funding to which it felt entitled. That prompted angry words from hospitals honcho Ken Raske and health workers chief Dennis Rivera, a potent combination of votes and dollars. Needless to say, the budget reform was DOA.

But don't blame the shadow troika for promoting their members' interests. Blame Pataki, Silver and Bruno, who cravenly cave in on the troika's every demand. That's because these pols place their incumbencies ahead of their principles - and your interests - every time.

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Albany Legislature Set to Adjourn Without a Budget, or Much Legislating
By MICHAEL COOPER, NY TIMES, June 21, 2004

Finished business here is long. The budget is late for the 20th year in a row, the state's leaders are nowhere close to a compromise on the school aid plan they must present to the courts by July 30, and the state has failed to pass many important laws even though its leaders say they are close to agreeing on them.

The impact on the public is real. The state has yet to agree on what kind of mental health treatments should be covered by health insurance, or how to change a law unique to New York that has caused many automakers to stop leasing cars in the state, or whether to protect small wetlands from being drained and developed, or where to allow new power plants to be built. And while all three state leaders agree that New York's Rockefeller-era drug laws are too harsh, they strongly disagree about how far they should go in shortening the mandatory sentences and offering treatment instead of prison.

Even the threat that New York State could lose more than $200 million in federal funds has not been enough to get the leaders to agree on a plan to overhaul its election system by replacing its antiquated voting machines, creating a database of registered voters and declaring what kind of identification should be acceptable at the polls.

And despite scandals that have touched the Pataki administration and both houses, several proposed ethics laws have languished.

Governor Pataki's former labor commissioner, James McGowan, was convicted of funneling state grants to a friend in exchange for money and the promise of a job. Former State Senator Guy J. Velella, a Bronx Republican, pleaded guilty to a bribery-related charge for having people seeking state contracts retain a law firm in which he and his father were partners. And Assemblyman Roger L. Green, a Brooklyn Democrat, pleaded guilty to charges that he took free trips between his home and Albany from a contractor seeking state business, and then billed the state for travel reimbursement.

But despite the hope of civic groups that those scandals would prove embarrassing enough to prompt state action, even a relatively modest proposal that would require vendors seeking state contracts to fully disclose their lobbying activities, just as groups seeking new laws are required to, has so far failed to be passed into law. More ambitious laws proposing greater oversight on the state's largely unregulated network of public authorities are even less likely to become law this year, advocates fear.

And a proposal to overhaul the state budget process, which lawmakers announced with fanfare just hours before this year's deadline passed without a budget, has stalled.

The reason? It calls for a backup budget to take effect automatically if the budget is late. Although the backup budget was originally envisioned as an austere plan that would force all sides to negotiate a deal, politicians and the health care lobby are now worried that the backup budget would be too severe. So, in effect, the bill to prevent future late budgets is being held up by fears that future budgets will be late anyway.

"This is easily the most boring, the most unproductive, and I guess, the most stagnated session I can remember," said State Senator David A. Paterson of Harlem, who leads the Democratic minority in the Senate, a group with little power to pass laws that serves as a sort of loyal opposition, bombarding the majority with counterproposals.

The session has lasted nearly six months, of which lawmakers have had 58 actual working days so far. A vast majority of bills passed in the Legislature have been one-house bills, which will not become law because the other house has yet to pass them. The Senate has passed 746 bills not acted on by the Assembly, and the Assembly has passed 809 bills not acted on by the Senate. Governor Pataki has signed about 100 laws, mostly to keep the government running without a budget, allow local governments to change their tax laws or extend state programs that were set to expire.

New York's institutional and political divisions have long resulted in governmental gridlock in Albany. The Legislature, which faces pressure to deliver for local districts across the state, often finds itself institutionally at odds with the governor. Added to that, the two houses are permanently politically divided: carefully gerrymandered districts have left the Senate in Republican hands for decades, and the Assembly controlled by Democrats. On top of it all, the three men who control state government do not seem to like or trust each other very much.

"This is the logical continuation of an extremely problematic, extremely bad structural situation, exacerbated by interpersonal enmity," said Gerald Benjamin, a political scientist who follows state politics closely and is dean of the College of Liberal Arts and Sciences at the State University of New York in New Paltz. "It's a normal year for this kind of bad system. And that should be scary, to say that it's normal."

Public confidence in state government is low. A Quinnipiac University poll released June 16 and 17 found that by a margin of more than two to one, New Yorkers think state government is broken. And, by a margin of 47 percent to 43 percent, those polled said that they would rather see the courts develop a plan to aid poor school districts than have their elected representatives in the Legislature do it.

Nassau County Executive Thomas R. Suozzi, a Democrat, is leading a campaign encouraging the public to vote out incumbents of both parties. It is a quixotic campaign, to say the least: his own statistics show that thanks to gerrymandered districts and rare opposition, only 30 incumbents have lost in the close to 2,300 re-election campaigns for the State Legislature over the past 22 years.

Albany's leaders are puzzled by the endgame this year. While they are trying to negotiate agreements on a raft of issues by Tuesday, from overhauling the drug laws to possibly even raising the minimum wage, officials here said that it was difficult for the leaders to compromise before passing a budget, because they tend to keep all their cards until the last minute, when they typically play them all at once.

But the budget and the school aid issue are proving elusive. With the Assembly interested in increasing school aid across the state much more than either Governor Pataki or the State Senate wants to, there is increasing consensus here that the state may be unable to present a unified plan to the courts.

Now, Assembly Democrats are grumbling that Governor Pataki's decision to pass an emergency spending bill that lasts until August may be an attempt to keep them from attending the party's national convention in Boston July 26-29.

If that happens, some Democrats warn, they could retaliate by holding up the budget until after Governor Pataki welcomes President Bush to New York City for the Republican National Convention, Aug. 30- Sept. 2, which would be an embarrassment. "This could last until October," one veteran lawmaker said.

METRO MATTERS
Albany's Law, Reminiscent of Murphy's
By JOYCE PURNICK

QUESTION for the first week of summer. New York, do you need your Legislature?

The State Legislature is scheduled to go into recess tomorrow. New Yorkers may be forgiven if they did not know that. They may be forgiven if they did not know that their Legislature was in session. In fact they may be forgiven if they did not know they had a Legislature, given its current state of inertia.

"I don't know if they realize it, but they are calling into question their reason for existence," E. J. McMahon, a senior fellow with the conservative Manhattan Institute, said of the Assembly and Senate. "It becomes increasingly apparent as they sit up here doing nothing."

Exaggeration? Consider this highly abbreviated list of what the New York State Legislature has not done since convening on Jan. 7:

¶It's missed its April 1 budget deadline for the 20th straight year.

¶It has not agreed on how to comply with a court order requiring the state to send more school aid to New York City.

¶It has not revised the infamous Rockefeller drug laws, despite promises going back at least a decade.

¶It has not reined in state authorities.

¶It has not raised the minimum wage (though it still might, to save face).

"This was like the 'Seinfeld' of sessions - nothing happened," said Assemblyman Tom Kirwan, the iconoclastic Republican from Newburgh. "I don't know if these are exactly scientific numbers, but I think we can compress the entire session this year into four eight-hour days. I don't think I'm far off."

He probably isn't. In fact, given the Legislature's list of nonaccomplishments this session, Mr. Kirwan's calculation might be unduly generous.

The political torpor of Albany is nothing new. It is nothing new that its agenda is controlled by those three men in a room (the Assembly speaker, Sheldon Silver, a Democrat; the Senate majority leader, Joseph L. Bruno, a Republican; and their partner in governmental paralysis, Gov. George E. Pataki, also a Republican.) Nor is it anything new that legislation always waits for a budget agreement.

What is new, or recent, is that inaction has been institutionalized. Those three men went into their room and figured out how to make it easy to procrastinate. A late budget used to hurt. People were not paid, school districts had to borrow and were not reimbursed for the interest. Lawmakers would now and again approve emergency appropriations as stopgaps.

Now, those appropriations ("budget extenders") are routine - so much a part of the process that they've become pseudobudgets. "There's some predictability today," said the state comptroller, Alan G. Hevesi. "The damage is to lack of planning, lack of moving ahead with projects, but the impact isn't as severe as it was 10 years ago." At least lawmakers don't get paid until there's a budget. In the meantime, they keep up the pretense that they have something to do, acting the role of full-time lawmakers, though they probably do no more than their part-time predecessors.

THROUGH the 1960's, the Legislature's sessions rarely lasted until Easter, staffs were small and facilities modest. The governor had the resources and the power. Then, in the mid-1970's, things started to change. The legislative budget grew (to today's $200.5 million from $32.2 million in 1975 - between $114 million and $120 million in current dollars). "In a vacuum, academically, it was a good thing," Mr. Hevesi said. "We have a really balanced democracy with the Legislature as an equal partner. Except when they don't agree. Then - gridlock."

Mr. Pataki does not escape blame. Other governors might be rallying the public and pushing the Legislature. But that's not Mr. Pataki, so detached that he just flew off to California.

New Yorkers consider him most responsible for the budget impasse, a new Quinnipiac University poll shows. They also disapprove of the Legislature's performance, by a margin of 51 to 29. But the same poll reiterated that most New Yorkers strongly approve of their own lawmakers - hardly a surprise since incumbent legislators get generous campaign contributions and control the district lines that guarantee their survival. "It's a rigged system," said Gerald Benjamin, dean of the College of Liberal Arts and Sciences at the State University of New York in New Paltz. "They all get re-elected."

So idle summer questions notwithstanding, New York's Legislature is staying right where it is, doing what it does: nothing much. Because, to borrow the painful language of a recent president, it can.

Albany's Do-Nothings
NY TIMES Opinion, June 26, 2004
The New York State legislators packed their bags this week and went home empty-handed. Nothing significant was done in Albany, not even a budget. Since January, the scorecard reads zero. And as a Quinnipiac University poll showed last week, Gov. George Pataki is getting the largest share of the blame by voters for the petrification of New York's state government. This is particularly inconvenient for Mr. Pataki, just as his fellow Republicans are coming to New York City for a presidential convention. So the governor whirled into action. He gave speeches and urgent press conferences to persuade everybody to understand the importance of realizing that the real problem was-- somebody else.

Mainly, Mr. Pataki and his Republican colleague, the Senate leader Joseph Bruno, wanted to dump the blame on a Democrat, Assembly Speaker Sheldon Silver. They accused him of staging a one-house sit-down strike.

Mr. Silver, widely known for his secrecy and his delaying tactics, may indeed have turned passive aggression into a new political art form. But this time, he is on the right track. His position is that no state budget should be passed without including the most important issue on the table: education funds. New York's leaders face a judicial mandate to reform the way the state supports local schools, putting more money into the neediest districts. If Mr. Silver, Mr. Bruno and Mr. Pataki can't come up with a plan to present to the appeals court on July 30, then a court-appointed special master will take over. This is a terrible idea for New York's schools and a terrible failure for the three leaders in Albany.

But all three of the leaders are to blame for the real plague on New York's Statehouse. That is the inability to do other things while the governor, Mr. Bruno and Mr. Silver negotiate on the budget. If only three men have the authority to decide anything - anything at all - what are the other 209 politicians really doing up there? Why are they earning their per diem pay in Albany if they're not putting in a real day's work?

There are so many half-finished bills - one version in the Assembly, one in the Senate - that Speaker Silver has proposed a series of conference committees to iron out the differences. Reforming the Rockefeller drug laws, buying new voting machines, revamping the lobbying law and raising the minimum wage - these are a few issues that could be negotiated while the budget is stalled. It is the way most legislative bodies work out differences. But not in Albany. Mr. Bruno appears to have dismissed the conferences this time around as one of Mr. Silver's "publicity stunts."

If Mr. Bruno and Mr. Silver can't let their members work out nonbudgetary issues on which they are supposed to be expert, it's time for voters to consider throwing them out in this year's elections. Now is the exact moment for challengers to start running against Assembly and Senate incumbents. Petitions must be signed over the next three weeks - the first stage in becoming a candidate. It won't be easy to chip away at New York's solidified Legislature. But voters deserve candidates who are ready to start.