Timing is Everything

Democratic Conference Leader John Sampson is right that his view and the views of other Senate Democrats ought to be heard in the debate over mayoral control of schools. And of course, the Senate is not required to adhere to the Assembly's version of the bill. But Sampson is wrong in his timing.

The Democrats have done nothing about Mayoral Control since January, when they actually did have control of the Senate. They were relying on the same last minute, midnight politics employed by the Speaker of the Assembly. And here they failed because they lost control of the chamber. Now Sampson wants to hold New York City's education system hostage for his party's failure to reform their own House when they had a chance. To quote a famous philosopher, "that's Chutzpah."

Correction: In an earlier version of this post, we stated that the Assembly's version of the mayoral control bill was passed in an overnight session with no opportunity for public input. In fact, the mayoral control bill was passed on June 17, several days prior to the Assembly's overnight end-of-term session, and the Assembly education committee held several hearings on the issue. We apologize for any confusion our post may have caused.

Political Power and Dominance Beyond the Coup

Yesterday, the New York Times ran a story about the impact of the state’s shifting demographics on gridlock in Albany, predicting that population increases in urban areas will lead to a larger Democratic majority after the 2010 Census.

The article mentions Republicans’ efforts to combat this trend in 2000 by packing as many urban voters into as few districts as possible while creating more rural districts of lesser population, but its author does not seem to think that this could happen again. We aren’t so sure.

Some have speculated that a primary motivation for the June 8^th Senate coup was control of the redistricting process, which occurs once per decade. And while the legislative leadership-appointed commission that redraws district lines must keep the population of each district roughly equal, there are all sorts of ways for those in charge of redistricting to game the system to grant the dominant party more control. Those in charge of the redistricting process can and often do dilute votes by packing voters together or dividing them among several districts, enhance power by creating oddly-shaped districts with the “right” partisan demographics, and divide communities of shared interest.

The ability to singlehandedly appoint a third of the members of the state’s redistricting commission (the Speaker of the Assembly appoints another third) is just another unique power of the Majority Leader that has, as we’ve said before, made the fight for leadership of the Senate so bitter.

When we consider ways to ensure that the chaos of the coup doesn’t happen again, working toward a more independent redistricting process merits serious consideration.

Some Thoughts on the Legal Claims Being Thrown around the Capitol

Salaries:

The governor is without power to halt payment of legislative salaries. The state constitution grants him little authority over the legislative branch, and none in this area. (And rightly so - if a governor who disagreed with the legislature's political positions or leadership had the power to cut legislators' salaries to keep them in line, it would be a gross violation of the separation of powers.) The courts might disagree, but it won't be because of the law. If the courts side with the governor, their reasoning will be rooted in short-sighted political payback for the legislature's continued denial of judicial pay raises, not legal reasoning. If the governor keeps beating on the wage drum, the senate could introduce legislation cutting his salary for errant behavior, something they most likely have the power to do.

Extraordinary Sessions:

While I am not sure a court would hear the case, the Senate is probably correct to say the Governor cannot call only the Senate back into session. While the Constitution seems to provide for that, its aim is to allow the governor to call the Senate back into session for things only the Senate can do, such as confirming appointments. The problem is that the Assembly has no interest in being called back to Albany and the Governor knows this, so he is trying to apply the provision for calling the Senate alone more broadly.

The bills enacted in the Senate last week will probably have to be enacted again to make sure they are identical to the ones past by the Assembly and to make sure the processes comply with the N.Y. Constitution's requirements. Even the Governor's Counsel has raised questions about the legality of these bills, and opponents of legislation passed during extraordinary session are sure to bring the issue to court.

The Politics:

My prediction based on my six years as counsel to the minority and many years thereafter studying legislatures is that the Senate will figure some way to pause their very real and important struggle over political power (which directly affects policies) to address the "must-pass" bills before them. Maybe they will even enact some rules reform along the way.

The Case for Rules Reform Today

Looks like the Governor’s threats of legal action and docking pay may have paid off, as the warring factions in the Senate have agreed to come together in an extraordinary session this afternoon. While there is always a chance that today’s meeting will be a repeat of Monday’s farcical dueling sessions, holding an actual session before the leadership fight is resolved could turn out to be the best thing to happen to either side. Today, on neutral ground, Senators can pass a rules reform resolution that will ensure that whoever ends up on the losing side of the Senate battle will still have an active role in governing.

Nobody has heeded our call to break rank and work with the other side to enact rules reform, no doubt in large part because working with the other side would mean giving a quorum – and the opportunity to legislate – to the opposition. But today, all 62 Senators will be in the room and they will be forced to legislate. Now is the moment to enact a bipartisan reform proposal to prove both sides’ commitment to reform and to ensure that the Senate can return to some semblance of function next year.

This may also prove useful in negotiating a power-sharing agreement, which both caucuses will eventually have to do. As Larry Norden stated yesterday on Buffalo Public Radio, one reason that a power-sharing agreement in which each side gets to appoint members to certain powerful leadership posts does not work in New York is because there is only one leadership role that really matters – that of the Majority Leader. By enacting reforms to strengthen committees and make them the engine of the legislative process that they are in most other states and in Congress, the Senate can decentralize power and divide authority over the legislative process more equitably.

The New York State Senate will not get a lifeline like this again. Its members should take the long view and act to ensure that 2010 is not a repeat of this ignominious session year.

How Did We Get Here?

Our own Larry Norden has a terrific interview on Buffalo Public Radio on the structural problems in the Senate that led to the coup and intensified the battle for leadership of the chamber.

What about the Assembly?

Over the past two weeks, the Assembly has been lauded as a model of a functioning legislative body, churning through a dizzying number of bills in its final days before recess.

Compared to the Senate, of course, the praise is justified. The Assembly has both met and passed legislation in the past two weeks while the Senate has been mired in quorum-less faux sessions, court battles, and media posturing. But what we mean when we talk about a functioning chamber merits further examination.

Last Monday, the Assembly met for 4 and a half hours and passed 78 bills on topics ranging from animal control programs to voting machine allocation. That works out to about one bill every 3 and a half minutes – which means that it is unlikely that a single one of these bills received any debate. There’s no question that the chamber is highly productive, but the legislation it produces is not carefully considered, especially given the fact that it is extremely unlikely that any of these bills were publicly reviewed, debated or amended in committee either.

Things didn’t improve as the session came to a close. In the final 13 hours of session, the Assembly acted on 202 bills, or 16 percent of all legislation passed this year. Add that to the 317 bills passed last week, and you get 41% of all legislation passed this year – all brought to the floor in the final week of the session. The end-of-session logjam, typical of both legislative chambers in Albany, precludes full review of legislation and makes it difficult for the public to follow and weigh in on legislative action.

Finally, we mustn’t overlook Assembly Speaker Sheldon Silver’s role in this year’s secretive budget process that provoked Tom Golisano’s ire and that may well have set the coup in motion. As the Times reported in March, it was Silver’s proclivity toward closed-door meetings and leadership control of the legislative process that pushed the budget process into the dark, circumventing open meeting laws intended to promote government transparency.

So yes, the Assembly is technically a functional chamber in that it was able to continue on with business as usual as the Senate devolved into chaos. But it's a measure of how far we've sunk in New York that this is now considered praiseworthy in some circles.

Moving On: What to do About Deadlock

The National Conference of State Legislatures has a useful guide to deadlocked state legislative chambers since 1966, and what the chambers did to resolve the issue and keep legislative business moving.

In most deadlocked legislatures, the parties have negotiated a co-leadership agreement similar to that proposed by Senate Democrats last week. With the GOP-Espada coalition continuing to rebuff the Democrats on this front, we thought it might be a good time to look at other methods that states have used to work through a tie (setting aside a tiebreaking vote by the Lieutenant Governor, of course).

Several states have negotiated a different type of power-sharing agreement. In Arizona, Minnesota, North Dakota, Oregon, and Virginia, different leadership posts are selected by different parties, so that one party selects the presiding officer, one selects powerful committee chairs, and so on. Of course, with New York’s weak committee system, it’s not clear if getting to pick committee chairs is really a fair trade for floor leadership unless the agreement is accompanied by reforms that strengthen committees.

Florida and Maine have both employed a unique twist on the power-sharing agreement wherein each party holds the presiding officer position for part of the term, and the first person who takes the post agrees to an unconditional, irreversible resignation at the conclusion of her negotiated period of leadership. A negotiated resignation facilitates a smoother transition and avoids questions about the constitutionality of electing a new presiding officer in the middle of the term. (The question of whether it is constitutional to elect a presiding officer when one has already been elected for a two-year term is, of course, at issue here in New York.)

South Dakota, Montana, and Indiana all have statutes that allow the Governor to choose legislative leaders in the event of a tie, but of course, enacting such a statute would require a functional legislature, and neither party is likely to throw so much deference Patterson’s way.

If all else fails, there’s always a good old fashioned coin toss, used to break ties in Wyoming.

The bottom line? If Senators aren’t willing to leave the leadership question up to the whims of fate or the discretion of the Governor, they’re going to have to figure out a way to work together.

The Times Agrees: This is the moment for reform

In Saturday’s New York Times, the editorial board echoes our call for reform-minded Senators to take inspiration from the Espada/Monserrate charade to enact rules reforms and make the best out of the mess in Albany.

Back to Court

In an earlier post, I noted the wisdom of the Democrats' decision not to appeal Judge McNamara's opinion in Smith v. Espada. Turns out I jumped the gun. After negotiations between the two caucuses broke down again on Thursday, the Democrats changed their mind and will appear before the Appellate Division on Tuesday, a day after the scheduled conclusion of the session. Hopefully the court will affirm the earlier case.

But does it really make a difference? Even if Malcolm Smith (or John Sampson) is ruled the Temporary President, this does not produce a quorum, unless the Smith-Sampson team adopts the Espada position that the Temporary President has two votes on a quorum call. Of course, they have strenuously opposed this view until now. (My earlier post about Espada's possible entitlement to two votes does not include quorum calls. It is fairly clear that each member can have no more than one vote on such a procedural motion.)

Sieze the Moment for Reform

Following yesterday's Daily News article in which Larry is quoted as saying that the Senate coup shows that rank and file members can enact rules reform, we have an op-ed in the paper today that reiterates that members can and must introduce reforms if the Senate has any hope of governing.

A Wise Decision

This afternoon, New York Supreme Court Justice Thomas McNamara dismissed the Democrats’ lawsuit against Senator Pedro Espada, declining to intervene in a legislative matter and sending the question of legislative leadership back to the political branch where it belongs:

[…T]he question calls for a solution by the members of the State Senate, utilizing the art of negotiation and compromise. The failure of the Senate to resolve this issue in an appropriate manner will make them answerable to the electorate.

The Democrats recognized the wisdom of this decision, declining to file an appeal and pledging to develop a power sharing agreement. The Republicans have yet to show their own wisdom on this point, and continue to stymie any consensus efforts.

Two out of three isn’t bad, but we need the Republicans to come around if the Senate is to get back to the business of governing.

The other 31-31 problem

Last night, Senate republicans walked away from the negotiating table, punting the question of who rightfully holds the title of Majority Leader back to the court. Not only is it inadvisable to draw the court into a legislative matter, but this also means that whoever comes out on top will be crowned Majority Leader without actually commanding the support of a majority of the chamber.

Even if Senator Espada is entitled to two votes as acting Lieutenant Governor, neither the Constitution nor the Senate rules allow him to count double toward the 32 Senators necessary to constitute a quorum and conduct official Senate business. The coalition cannot govern without the participation of Senate Democrats, who have little incentive to cooperate given that the coalition is unwilling to concede any power.

While it’s no secret that both parties are responsible for Senate operations grinding to a halt last week, Skelos and Espada’s apparent willingness to hold the people’s business hostage rather than to negotiate is audacious even for Albany.

No More Days in Court

Why have the Senate Democrats asked the state courts to intervene in what is evidently a political matter? Inviting the court into the legislative process, no matter the short term value, only further weakens a legislature that is already judged dysfunctional. Fortunately, the court has seen the constitutional dangers of the petition and has sent the two parties back to the negotiating table. Let's hope that the parties don't add insult to injury by forcing the court to referee.

Two Votes for Espada?

One thing the Republican Conference seems to have overlooked in turning over the post of President Pro Tempore to Senator Espada is the possibility that he will be entitled to two votes in certain circumstances.

Under the New York State Constitution (Art. IV, § 6) the President Pro Tempore assumes all of the powers of the Lieutenant Governor if that office is vacant, which it has been since David Patterson took the Governor's seat last year. The most important of those powers is to cast a vote to break a tie in the Senate.

This could well mean that Espada would have power to cast an initial vote to create a tie in tight votes, and then cast a second vote to determine its outcome. If Hiram Monserrate defects back to the Democrats, as some are speculating he might, the Senate will be split 31-31 - and Espada may become the most important man in Albany.

Process Matters

Imagine this: It’s March of 2009, and newly-minted Senate Majority Leader Malcolm Smith is negotiating his first budget. He’s promised a more open and transparent budget process to the public and to Tom Golisano, the man who helped Smith’s party regain control of the Senate, and he wants to stick to his word despite pressure from Assembly Speaker Sheldon Silver to keep things under wraps.

So Smith and his fellow Democrats decide to draft a budget resolution that will allow members to debate and vote on the outlines of the budget in advance of the deadline, in effect allowing members to draw up the blueprint that Smith will use in crafting the actual budget with Assembly Speaker Silver and Governor Patterson.

All of this actually happened. This next part is a little more hypothetical.

Let’s say that instead of pulling the plug on the resolution and negotiating the budget in the most secretive process Albany has seen in years, they draft the resolution. The Finance committee holds a hearing or two, where Tom Golisano testifies about his concerns with the tax increases proposed in the resolution. Nobody fiddles with their blackberry during the hearing.

The resolution comes to the floor for debate and a vote. Senate Republicans air their grievances with aspects of the resolution, and maybe the chamber even incorporates an amendment or two. Maybe the “millionaire tax” stays in, maybe it doesn’t. The senate votes on the resolution, and Smith goes into budget negotiations with Silver with the opinion of the full Senate as his guide.

Maybe Tom Golisano is still mad about the millionaire tax, but he has to concede that Smith delivered on his promise to give the public, including the tax’s opponents, a chance to speak their minds. Senate Republicans still don’t enjoy being in the minority, but they can’t stick Smith with the argument that he has made the legislative process in Albany less open than it was under their rule.

Fast forward to June 10, 2009: Is Malcolm Smith still Senate Majority Leader?

A Clarification on Tom Golisano

In today’s Syracuse Post-Standard, I was quoted as saying that people like Golisano shouldn’t be able to use money to shape legislative events. Unfortunately, the reporter truncated the most important part of my statement and the result is a little misleading.

While it’s true that legislative votes shouldn’t be bought and sold (and it’s important to note that there is currently no proof that this is what happened here), there is a much bigger story in Albany than Tom Golisano, and it's not all that different than the story New Yorkers have been living with for decades.

Monday’s vote was emblematic of how broken Albany really is – a more open and robust budget process would have given Golisano a venue to air his concerns in a less dramatic manner. No small group – be it composed of legislative leaders or wealthy financiers – should make decisions behind closed doors that affect all New Yorkers. The legislative process should allow for open, public debate that allows legislators and members of the public to thoroughly explore the issues affecting all of us.

So what will Espada's new role in the Senate be?

In addition to other changes, and as announced in their press conference, the Senate's new rules provide for power sharing between the Temporary President (Senator Pedro Espada) and the Majority Leader (Dean Skelos). But sharing doesn't mean EQUAL sharing. Espada does not have many of the powers Temporary Presidents have been given in the past.

While many decisions previously subject to the approval of the Majority Leader – like referring bills to committees and putting bills on the active list – are now subject to both the Majority Leader and the Temporary President, many of the important responsibilities allocated to the Temporary President (who traditionally also holds the position of Majority Leader) under the old rules have been explicitly shifted to the Majority Leader in the new resolution. Dean Skelos will appoint committee chairs, appoint the chair of the Rules committee, appoint officers and employees of the senate, and have general control of the chamber.

If this was a power grab on the part of Pedro Espada, he may not have too much power to show for it (at least as relates to the operation of the Senate chamber).

An Assessment of the Senate's New Rules

We just finished reviewing a copy of the rules resolution passed by the Senate yesterday to see if the new majority really followed through on the promises made by Senator Skelos.

For the most part, the rules do what Skelos said they will, with the major caveat that none of the most important changes go into effect until July 15, 2009 – after the session ends for this year. How the chamber will be run for the next two weeks remains to be seen.

The resolution also punts on proxy voting in committees – while Skelos said that they would address members voting in absentia, the new rules simply state that all committee members must attend each meeting unless properly excused by the Chair and the ranker, without preventing such “properly excused” members from voting on legislation. Members still cast votes on “official voting sheets” delivered to the chair, which members typically fax in rather than delivering them in person.

Of course, as we blogged yesterday, the resolution really misses the boat on committees entirely. There is nothing in these new rules about an amendment or mark-up process in committees or producing substantive reports showing the work of committees on legislation. Bills do not even have to be read before a committee to receive a vote.

But the resolution delivers pretty much everywhere else. If the new majority sticks to the rules they passed, member resources will be distributed more equitably and central staff will be allocated proportionally to the membership of the chamber. All senators will receive the same allocation of staff funding for their offices, and allocations for office rent will be based on real estate values in each members’ district. These are basic steps, but New York has long lagged behind the rest of the country in this regard.

The rule creating a new “motion for consideration” which allows members to either move for a vote or petition for a bill to be placed on the active list is surprisingly rigorous. Motions or petitions receiving the support of a majority of members present and voting and a majority of the chamber, respectively, will move bills onto the active list even over the wishes of leadership. These bills will come before the chamber for a vote on the next session day, or, if the motion or petition is made within the last four days of a legislative session, the bill will receive an immediate floor vote.

The other elements of Skelos’ proposal – creating a NYSPAN channel, publishing committee work products, eliminating “aye without recommendation votes,” extending budget debate, effectively eliminating messages of necessity, and imposing term limits on committee chairs – are all in the resolution as Skelos said they would be.

Update: Rules Resolution Now Available

We just got a copy of the rules resolution passed by the Senate yesterday after the change in leadership. We're still going over it to analyze the changes, but in the meantime, we wanted to make it available to the public (we are, after all, living in a new age of transparency).

Click here to download a PDF of the resolution.

The Brennan Center's Statement on the Senate Takeover

Yesterday, members of the New York State Senate held a vote to install Republican Dean Skelos and Democrat Pedro Espada as Majority Leader and President of the Senate, respectively, and passed a resolution to enact several rules changes.

According to leaders of the coup and financier Tom Golisano who backed the vote, the move was orchestrated in the name of “bringing real reform to the Senate.” In a press release yesterday afternoon, Golisano cited the Brennan Center’s report as evidence that reform was necessary, stating that Senate Democrats had failed to enact the reforms they promised before taking the Majority in January.

Golisano’s main complaint seems to be the transparency of the budget process, which was reported to be more opaque than ever this year. “While we can’t speculate about whether or not this would have happened anyway, it is fair to say that if the Democrats had passed broader rules reform this year, Golisano would have had another venue to air his grievances and the arguments about reform that he and others made yesterday would have had less legitimacy,” says Brennan Center Senior Fellow and Hofstra University Law Professor Eric Lane, who served as Chief Counsel to the Senate Minority from 1981 to 1986.

While a statement released by Senator Skelos indicates that the rules changes passed yesterday include improvements like allowing rank-and-file members to force a bill onto the floor, it is impossible to analyze the changes without seeing the exact text of the resolution passed by the Senate. “The devil is really in the details,” says Brennan Center Senior Counsel Lawrence Norden, author of the Center’s 2006 and 2008 reports about the legislative process in Albany, “In the past, Senate Republicans have passed resolutions worded to protect the status quo under the guise of reform. But if these reforms are what they appear to be, they represent important – but incomplete – change.”

However the reforms are worded, they fail to address the most critical component of Albany’s broken process: the committee system. The reforms fail to provide for an amendment process in committee or to require committees to produce substantive reports on the bills that they report to the full chamber. “The Senate won’t bring its chamber into line with nearly every other legislature in the country until it addresses the broken committee system,” says Norden. “It’s great for members to have the ability to force bills to the floor for a vote, but it would be much better for New York if those bills had been thoroughly reviewed and vetted by a competent committee. I don’t see anything in the summary of these new rules that makes this possibility more likely.”

To schedule an interview with Larry Norden, Eric Lane, or Laura Seago, call Brennan Center Press Manager Jeanine Plant-Chirlin at 212-998-6289

Today's Rules Changes

According to a statement from Dean Skelos’ office, the newly formed “bipartisan majority” voted to adopt some rules reforms when they seized control this afternoon – something that the Democrats had yet to do, which, according to the Times, contributed to Tom Golisano’s ire.

Golisano, by the way, is adamant that this is all in the name of reform. In a press conference this evening, he cited our report as evidence that the legislature is broken.

Here’s a very brief rundown of the rules changes passed today:

• 8-year term limits for Committee Chairs and Rankers
• Eliminating proxy voting in committee
• Eliminating “aye without recommendation" votes
• Increased transparency (along the lines of what the [former?] Democratic majority had already begun to do)
• Shared access to administrative resources such as printing, mailing, and supplies
• Allocating district offices based on district area
• Allocating the same base staff salary to all members
• Allocating committee chairs and central staff proportionally to the majority/minority split of the chamber
• Allowing non-sponsor floor amendments to be taken up by the full chamber without returning to committee
• Limiting messages of necessity
• Allowing sponsor motions and petitions to place bills on the active list
• Allowing procedural votes to proceed with only a majority of members present – not a majority of members elected – on the floor
• Allowing budget debate to exceed four hours

Some of these items seem like real improvements, but it’s difficult to know for sure without seeing the text of the reforms passed today. In the past, Senate Republicans have been known to claim to enact reforms while crafting the language of the changes in such a way as to preserve the status quo – or make the situation worse. If these changes are what they seem to be, they represent (for the most part) a real improvement over the current rules. However, even these changes appear to ignore what is perhaps the biggest problem in the way the New York Senate functions -- the Senate’s broken committee process. See our recommendations for creating more robust committees here and here.

Some Suggestions for Reform RIGHT NOW

Various news sources are reporting that Senators Espada and Monserrate have defected from the Democratic Majority in the Senate, restoring Republican control of the chamber.

While it’s unclear what exactly is going on at this point, the Republicans have been quite clear that they view the coup as a reform issue. Liz Benjamin reports that the Republicans’ statement preceding this afternoon’s vote to shift control of the chamber said that the move is intended to bring “real reform to the Senate RIGHT NOW,” and the Times reports that Tom Golisano may have helped orchestrate the vote in response to Malcolm Smith’s perceived failure to enact the rules reforms he promised.

If the (potential) new majority is serious about this claim, there are plenty of things that they could do, RIGHT NOW, to enact “real reform.” They could get it done before the end of the legislative session without waiting on the Assembly or the Governor. Specifically, they could reform their operating rules, so that the chamber began to look more like nearly every other statewide legislative chamber in the country (the New York Assembly excepted, of course). A few suggestions:

• Establish a rule requiring that all significant legislation be read for amendments before a full meeting of the committee to which it is referred before receiving a vote, and allow committee members to introduce and vote on germane written and verbal amendments.

• Establish a rule allowing bill sponsors or chairs of committees of original jurisdiction to call a conference committee over the wishes of the bill sponsor.

• Establish a rule requiring that all bills placed on the discharge calendar receive consideration by the chamber.

• Equitably distribute resources to all members of the Senate (inequitable resources were, after all, the Republicans’ main gripe during the past few months of Democratic control).

• Establish a rule requiring that all bills reported out of committee be accompanied by a report that demonstrates the substantive work of the committee on the bill.

In the past few hours, Senate Republicans have certainly talked the talk. For once, in New York, it would be nice to see a majority of politicians actually walk the walk.

Dodging Accountability on Gay Marriage

Yesterday, over claims from sponsor Tom Duane that the bill now has sufficient Republican support, representatives of Senate Majority Leader Malcolm Smith reiterated that he wouldn’t let the state’s much-discussed same-sex marriage bill come to the Senate floor until he was certain it had the number of votes necessary to pass.

This sounds a lot like the ‘old’ Senate, where the Majority Leader’s total control over the floor calendar meant that only bills with the leader’s support reached the floor, and when they did, their outcome was a forgone conclusion. This is particularly troubling given Smith’s promise prior to the 2008 election that if his party regained control of the chamber, they would enact reform to “allow a lot of good bills to come to the floor.”

Lawmakers know that they are reelected or voted out of office based on their voting records; protecting Senators from going on the record is tantamount to exempting them from public accountability. Smith should let the marriage bill come to a floor for a vote and force our Senators - particularly those who have been publicly hedging - to show their constituents where they stand.