Progress on Committee Hearings?

One of New York’s legislative shortcomings of particular concern to the Brennan Center is the lack of committee hearings where experts and the public can provide input on legislation under committee consideration and issues of public concern. While some states require such hearings on every bill, our 2004 report found that less than 1 percent of major legislation that passed the New York legislature between 1997 and 2001 received a hearing in either chamber.

Given this dismal track record and our high hopes for reform in the Senate this year, we were pleased when the Elections Committee announced a hearing about several crucial election-related issues, including the deadline for declaring party affiliation and notice of voting eligibility for people with felony convictions, both issues on which Brennan Center experts testified. The hearing was a particularly welcome move given the Elections Committee’s historic failure to hold hearings even when the federal government sued the state over New York’s noncompliance with federal election law, as we discussed in our 2008 report.

As always seems to be the case in New York, this can only be called an incremental improvement: not a single committee member aside from the chair attended the hearing, which was held in New York City last Friday. While holding hearings is an important first step, the efforts of public contributors and the legislators who do attend the hearings are diminished by the absence of committee members who have the power to promote or kill the legislation at hand. Hearings should be a forum for the open exchange of ideas between legislators and the public, not just an audience with the committee chair.

And rather than have a hearing on ten bills at once, as the Elections Committee did, we'd really like to see committees deal with one bill at a time. Ten bills in a single hearing is fine (if a little much), but at least separating out witnesses and questions by bill would allow committee members to devote attention to each bill separately.

For the record, the Temporary Committee on Rules and Administration Reform’s recommendations for rules changes don’t address keeping attendance records at hearings, as we’ve recommended before.

At the end of the day, our message to the Senate on committee hearings is the same as our message on the party affiliation legislation before the Elections Committee: You’re moving in the right direction, but you’re still lagging behind.

Amendments and Mark-ups in Committee: The Big Picture

Yesterday, my colleague Larry Norden blogged about the Temporary Committee on Rules and Administration Reform’s draft report -- the good, the bad, and the missing.

We thought we would follow Larry’s statement related to committee amendments and mark-ups (echoed here in a Daily News story) with the research to back it up. We canvassed written rules and interviewed legislative staff in several states to see if any other state allowed bill authors to restrict amendments as proposed by the Temporary Committee. As we told the Committee staff, we couldn’t find a single instance of authors retaining control over the amendments made to their bills in committee, and most states go to great lengths to ensure that committee members have real input on the bills under their consideration. A few highlights:

• In Connecticut, committee members have the opportunity to ask questions of the bill author or the committee chair and propose changes to legislation during the committee meeting following a mandatory hearing on each bill. Members can, and almost always do, propose amendments verbally.

• In California, any Assembly committee member may introduce amendments during the committee’s hearing on a bill. The author of the bill may declare these amendments friendly, in which case they are automatically adopted into the bill unless committee members opposed to the amendment force a vote on the issue, or unfriendly, in which case the amendment is subject to a simple majority vote of the committee members present. In the Senate, the rules also allow committee amendments, and the chamber’s rules explicitly state that the chair of a committee “shall permit questions to be asked by members of the committee in an orderly fashion and in keeping with proper decorum” during debate on a bill.

• In New Jersey, Senate rules dictate that committee members must submit amendments in writing, though amendments that arise during the course of debate on a bill may be introduced and voted on at the discretion of the chair. In this case, amendments will be written and incorporated into the bill after the meeting based on a transcript of the verbal amendment discussed during debate.

• In Minnesota, debating and reshaping bills in committee is considered an integral part of members’ responsibilities. Committee Chairs generally require that amendments be submitted in writing 24 hours in advance, with an exception for amendments that come up during the course of debate on a bill. In practice, this means that verbal amendments are allowed unless the amendment is too complex for members to consider in an informed manner without a written version, or unless the amendment clearly could have been submitted in advance.

These examples – as well as the rules and practices of several other states that we investigated but do not have room to mention here – show that if the Senate fails to go further in making committees a place where legislation is carefully considered and improved, New York will continue to trail the rest of the nation in legislative robustness.

Draft Report of the NY Senate Committe on Rules and Administration Reform

I just got my hands on the "Draft Report of the Temporary Committee on Rules and Administration Reform." Weirdly, considering the role of this committee in promoting greater transparency in the New York State Senate, the report is not yet on-line (to be fair, the committee has done a good job, up until now, in making records of hearings available as quickly as possible). I'll post a link as soon as I have one.

As you may remember, the Temporary Committee was set up by Senate Democrats to re-examine the rules of the Senate, and to make recommendations for reforming its rules and operations. This has been a cause of the Brennan Center's for many years. The Temporary Committee hired Andrew Stengel, formerly of the Brennan Center, to work with them.

Both chambers of the legislature have been labeled dysfunctional: many standing committees do little work; there is little debate, amendment or review of legislation; conference committees are rare; and leadership controls what gets to the floor for a vote.

We anxiously awaited today's report for months. So what have we received?

While there is much to praise in the report -- in particular, recommendations to increase transparency of the Senate -- the report is most notable for what is left for another day. I don't mean to be too harsh in this criticism. The Temporary Committee has asked to extend its time to work on, among other things, some of the biggest omissions. But there is no denying the omissions, or their importance. In its draft report, the Temporary Committee:

* states that it will develop standards for committee reports to accompany legislation voted out of committee by November 1, 2009 (we have offered our help with this -- it shouldn't be hard to do);

* recommends the development of a bill amendment process in committee "in which the sponsor retains control," without providing much guidance as to what that should look like (it's hard to know what the Committee means by sponsor's "retaining control" of a bill, but I am not aware of a formal rule in any state legislature or Congress that allows a sponsor to prevent a mark-up or consideration of amendments to her bill);

* does not state whether committees should have the right to hire and fire committee staff (which is critical for committees developing their own agendas independent of leadership);

* does not allow conference committees to be called to reconcile similar bills passed in each chamber without the approval of the Majority Leader.

I got a chance to watch a bit of the Temporary Committee's meeting today before this report was released. For the bit I saw, Republicans (predictably) focused on the fact that the report did not recommend equitable distribution of staff resources and member items. While this was a legitimate complaint, and something the Brennan Center has expressed concern about in the past, it was hard not to see the hypocrisy in the outrage over this omission. For decades, Republicans took the lion's share of resources without any concern about equity or the effect such disparate treatment of members had on members' constitutents.

It would be a little easier to believe that the Republicans were interested in improving the operations of the legislature if they also expressed concern about the need for rules changes that had less to do with their own pocketbooks, and more to do with a functioning legislature. Where was the passion for ensuring that committees start producing decent committee reports, or ensuring the existence of a good committee mark-up process, or establishing independent committee staff, or making sure that legislative leaders could not prevent the consideration of popular bills?

As for the Democrats, most members emphasized this report was the start, not the end. We certainly want to believe them.

The Senate will be voting on new rules in January 2010. Today's report is apparently a first step to better rules being adopted on that date.. We don't expect perfection from the State Senate in January 2010. But at the very least, the chamber needs to address most of the concerns mentioned in this post -- particularly those relating to standing committees. If they fail to do that, they will have failed.

"Up Close" on Albany's Dysfunction

On Sunday, our colleague Eric Lane was on WABC's "Up Close" to discuss dysfunction in Albany. The video of Eric's appearance is here. In the preceding Up Close segment, Malcolm Smith also mentioned the Brennan Center's work.

DOJ Sues New York Over Voting Again

The U.S. is suing New York State over voting again, this time over its failure to get absentee ballots to military and overseas voters on time.