Tuesday, January 06, 2009

Silver's Response to Brennan Center Report Misses the Mark

In response to yesterday’s release of the Brennan Center’s report Still Broken: New York State Legislative Reform 2008 Update, Assembly Speaker Sheldon Silver issued a statement suggesting that our report misrepresents the legislative process in the Assembly. We thought we’d set the record straight. Our responses to excerpts from Silver’s statement (in italics) are below.

In analyzing the work of the legislature, the Brennan Center report completely omits the state budget, as well as countless bills that pass either house every year.

This is incorrect. The analysis that forms the basis of the report included all of the budget bills listed on the New York Legislative Session Information page for 2006 and 2007 except the Legislature and Judiciary Budget Bill and the State Debt Budget Bill in each year. The statistics regarding substantive floor debate, meaningful dissent, and committee deliberation regarding these bills generally conform to the poor performance of both houses in considering the rest of the major legislation analyzed in this report.

The fact of the matter is that while the budget process in New York has become somewhat more transparent in the last few years, it is still far too opaque. Budget deals are still cut behind closed doors – once the budget bills are drafted, most details of budget reductions, tax increases, and member items are briefed and debated outside of public view.

The budget bills included in our analysis are S6456C, S6457C, S6458C, and S6459C in 2006, and S2106C, S2107C, S2108C, S2109C, and S2110C in 2007. To download a PDF with summaries of these bills, click here.

Among the other important reforms the Assembly has adopted over the years to create greater transparency include the passage of rules that:

  • End empty seat voting to ensure that Assembly members fully participate in the legislative process and are publicly accountable for their votes.
  • Create an open and transparent budget process through joint Assembly – Senate conference committees that analyze and hear public testimony on every aspect of the state’s fiscal plan.

In the 2008 report, the Brennan Center applauds the Assembly’s efforts to conduct budget oversight hearings (though all too often these hearings have been perfunctory); and the joint conference committees on the budget represent some improvement in budget transparency (although, as mentioned above, the system is still far too opaque).

On the subject on conference committees generally, no mechanism exists for bill sponsors or committee chairs to call these hearings to reconcile differences in important legislation. The Brennan Center encourages both chambers to allow committee chairs, bill sponsors, or the leadership to convene conference committees, which should represent members of each party proportionally to representation in the full chamber.

The Brennan Center’s 2006 report recognized the Assembly’s important first steps toward reform, including ending empty seat voting, obligating standing committees to meet once a month, requiring attendance at committee meetings, and reducing the maximum number of committees on which a member can serve. However, the 2006 report shows that these reforms did not solve many of the problems endemic in the legislature, and more work is necessary to ensure a transparent and robust deliberative process.

  • Mandate that all Assembly bills are approved by a standing committee other than the Committee on Rules, guaranteeing the participation of committees in the legislative process.

The Committee on Rules is not the only one to keep legislation from consideration by other committees with jurisdiction over the issue at hand. The Assembly rules allow the chair of the Ways and Means Committee to request bills outside its jurisdiction with the approval of the Speaker. While the rules do not grant the Codes Committee the same authority, anecdotal evidence suggests that irrelevant bills are also frequently referred to the Codes Committee – so frequently, in fact, that the joke inside the Assembly is that “Codes is where bills go to die.” These committees can hold up bills with no fiscal implications or a lack of sanction or penalty for months, preventing consideration by committees with legitimate jurisdiction.

  • Extend the time period for unlimited bill introduction from early March to the first Tuesday in May, allowing Assembly members more time to draft and submit legislation important to their constituents.

Insufficient time to draft legislation may not be the problem – in 2008, the legislature introduced more than 18,000 bills, most of which never made it to a committee vote. Given that 45% of major legislation passed the Assembly in the final 3 days of the 2007 session, up from 25.5% in 2001, it is not clear that this reform is an improvement with respect to allowing members ample opportunity to consider each piece of major legislation.

  • Ease the Motion to Discharge process by extending the period during which this process may be utilized.

Given that not a single motion to discharge successfully passed in 2006, 2007, or 2008, it is clear that this reform, while a step in the right direction, is insufficient. Motions to discharge should be allowed within 20 days of the date of referral, or within two committee meetings.

The Brennan Center’s report is wrong to dismiss and not include in its analysis bills that have been vetoed as well as the Assembly’s passage of major legislation that is not subsequently taken up by the Senate - bills that often set the stage for eventual enactment of critical legislation to protect New Yorkers.

While we have no reason to believe that an analysis of bills that pass in a single house and fail to become law would differ from our current analysis of major bills enacted into law, questions about the process for passing bills in one chamber are beside the point. As our ally Susan Lerner of Common Cause/NY said yesterday, "We elect our legislators to come up with laws, not bills."

The Brennan Center analyzes major bills enacted into law because this legislation affects the lives of New Yorkers.
The Brennan Center’s argument is that a poor legislative process results in poor laws, which is harmful to New York and New Yorkers.

In June 2007, the Assembly passed legislation to ensure marriage equality in New York state - a vote that received support on both sides of the aisle. At the end of the last legislative session, the Assembly also passed legislation on the very issue for which the Brennan Center is a registered lobbyist - Campaign Finance Reform. Until now, the Senate has not acted on this legislation, but it is our hope and belief that these bills will find support in the new Senate and eventually be enacted into law. That is the legislative process and it is mystifying that the Brennan Center would diminish it.

The fact that bills addressing important issues pass one chamber or the other does not necessarily speak to the process behind the development of this legislation. The same-sex marriage bill is an example of substantive and robust floor debate. However, this is a rare exception hardly the rule. While many believe that congestion pricing and brownfields cleanup development incentives are important, the bills addressing both of these issues reflected a failed legislative process that continues to impact environmental conservation efforts in New York.

Similarly, the Brennan Center fully supports comprehensive campaign finance reform, but no robust bill that results in a cost should lack a substantive fiscal note. Passing legislation that is not rigorously debated, open to public comment, and analyzed for fiscal impact can actually hinder the successful implementation of laws addressing important issues that affect the lives of New Yorkers.


Anonymous said...

The Codes Committee most certainly has the right to require bills to be referred to it. Assembly Rule IV, § 6.(i):

Any bill which is referred to a standing committee other than the Committee on Codes and which: 1)
imposes or changes any fine, term of imprisonment, forfeiture of rights or other penal sanction; or
2) relates to the procedure by which such fine, term of imprisonment, forfeiture of rights or other penal sanction is imposed or changed, shall, when favorably reported by the committee having original jurisdiction, be referred to the Committee on Codes for the purpose of having such Committee review and consider only such penalty or procedural provisions of such bill and to thereafter favorably report such bill with amendments, if necessary, to such penalty or procedural provisions. In the event that such a bill is not referred to the Committee on Codes, the chairperson of such Committee may require such referral, subject to the approval of the Speaker.

Anonymous said...

I would like to know how you guys do your research in New York and other states.

Do you actually attend meetings (sessions, committee meetings, etc.) in NY and other states?

Anonymous said...


Just a quick question. How did you guys determine that the NY state legislature is the most dysfunctional in the US?


Laura Seago said...

Just wanted to take a moment to respond to our two readers who had questions about our methodology in doing the research for our reports.

In the latest report, the methodology can be found on pages 32 and 33. There, we explain which bills we include in our quantitative analysis and what other materials we look at in determining the robustness of the legislative process. Because transparency is a huge part of a healthy lawmaking process, we rely very heavily on the records that each chamber keeps in accordance with their current rules. We also spend a great deal of time speaking with legislators and legislative staff to round out the picture.

In comparing New York with other states, I'll refer you to the 2004 report. In that report, methodology can be found on pages 77 and 78. The authors of that report conducted a broad telephone survey of state legislative agencies and analyzed the rules of all 99 legislative chambers. In subsequent reports, we focused on measuring New York against itself, looking for changes in performance from the original benchmark set in the 2004 report.