Judicial Remedy?

A lawsuit that could dramatically affect the way the New York State Legislature does business is snaking its way through the courts. As we noted last week the Appellate Division, First Department is currently considering Urban Justice Center v. Pataki, in which Democratic Senator Liz Krueger and Republican Assemblyman Tom Kirwan, joined by the Urban Justice Center, challenge the constitutionality of numerous legislative practices that enhance the power of majority parties and their leaders.

The lawsuit focuses on six methods used by the Speaker of the Assembly, the Senate Majority Leader, and the Governor—the proverbial “three men in a room”—to control the political process. These methods harm not only the values of representation and deliberation, according to the initial complaint, but also systematically disadvantage minority-party members and their constituents. To wit:

Unequal funding of member support: the Speaker and Majority Leader control the funds available for each member’s personal staff, office space, and other expenses, and allocate more money to party members.

Unequal member items: the Speaker and Majority Leader also control the funds for member-initiated projects, and use these “items” to their party’s political advantage.

Insurmountable obstacles to discharge motions: the houses’ rules make it prohibitively difficult for minority-party legislators to move bills out of committee and onto the floor.

Secret debates and votes: the legislative party conferences, where the parties hash out their positions on upcoming bills, are closed affairs.

Abuse of messages of necessity: the Speaker, Majority Leader, and Governor routinely use “messages of necessity” in cases where there is no necessity, and the Governor fails to sign these messages personally.

Leadership control over member pay: the Speaker and Majority Leader exploit the “Lulu” system of additional compensation for committee chairs (and, in lesser amounts, for ranking minority members) to sway the votes of members and their committees.

To followers of the Brennan Center’s work in this area, these charges may sound familiar; almost all of them echo arguments made in our 2004 report, The New York State Legislative Process: An Evaluation and Blueprint for Reform. The plaintiffs rely heavily on that report, which serves as Exhibit A. Whereas our work has focused on rules reform at the legislative level, the plaintiffs are seeking a judicial fix. They assert that the practices listed above violate the Equal Protection and Free Speech guarantees of the U.S. and New York State Constitutions, as well as several provisions specific to the latter.

At the State Supreme Court, Judge Solomon threw out many of the counts, but she allowed three to survive: the Equal Protection challenges to unequal funding for member support and unequal member items, and the state constitutional challenge to the Governor’s use of an “autopen” to sign messages of necessity (She also held that the Urban Justice Center lacks standing to be a plaintiff.) The State now seeks to dismiss these causes of action, while Krueger and Kirwan seek to reinstate the 15-odd other claims that Judge Solomon foreclosed.

Regardless of how the courts eventually rule, this suit should serve as a further wake-up call to the Legislature—and a spur to make the most of the rules-reform window opening up in January 2007. Judge Solomon begins her opinion by noting that “[a]ny New Yorker would find [the Brennan Center’s study and follow-on commentary] disheartening, as do I.” Any New Yorker, that is, would find troubling the democratic harms that result from a legislative process so concentrated in the hands of three people, so opaque to the public, so averse to substantive debate and professional policymaking, so tilted in favor of the majority party.

Here’s a thought experiment to put that last point in perspective: imagine if the Speaker, Majority Leader, and Governor were all from the same party. These individuals would face precious few external checks on their power, and there would no longer be an internal check on their coordinated action. They would not merely dominate the legislative process; they would monopolize it. Three men in a room would become one-party rule.

Categories: General, Legislative Rules