Keeping New York from Becoming the Next New Jersey

In light of last week's corruption sweep in New Jersey, it’s worth taking a look at the state of ethics in New York. While it’s tough to top the allegations of kidney trafficking and cash-stuffed cereal boxes involved in the New Jersey case, we certainly have our share of corruption. As we wrote in our 2008 report, four members of the Assembly alone faced corruption charges last year. One the Senate side, former Majority Leader Joe Bruno was indicted in January for accepting over $3 million from entities seeking state contracts, and coup leader Pedro Espada’s attempts to funnel state money to nonprofits that he has a history of illegally using as an extension of his political campaign are now well known.

The state’s ethics infrastructure was overhauled by the less-than-successful Public Employees Ethics Reform Act of 2007 (PEERA). Perhaps most strikingly, the law allowed the legislature to retain oversight authority over itself. The Legislative Ethics Commission, the body that oversees the Senate and the Assembly, is chaired by members of the very bodies that the Commission is intended to regulate. Of the nine members of the Commission, four are legislators and the other five are appointed by legislative leaders (this means that the ethically-challenged Espada now has appointment authority).

Just days before the Senate coup, Governor Paterson and legislative leaders from both chambers met to discuss reforms to the state’s ethics oversight infrastructure, which PEERA failed to improve. The Governor, Senate Democrats, and Assembly Speaker Sheldon Silver each presented different proposals and were unable to come to an agreement before chaos erupted in the capitol on June 8^th.

The proposals range from rolling back very modest steps toward independence made by PEERA to separating legislators from the Legislative Ethics Commission altogether. Silver’s proposal would create two bodies with oversight over the legislature. The first, a Joint Legislative Commission on Ethics Standards, would look very much like the current Legislative Ethics Commission, consisting of four legislators and four non-legislators appointed by legislative leadership. The second, a Legislative Office of Ethics Investigations, would be governed by a board appointed by legislative leaders, none of whom could have been affiliated with the legislature in the two years preceding their appointment. The Senate proposal, sponsored by Senator Daniel Squadron, would merge the Legislative Ethics Commission with the Commission on Public Integrity to create a new body with oversight over both the legislative and executive branches; four of the nine members of the new commission would be appointed by legislative leaders, but no commissioner could be a current or former legislator. The Governor’s proposal is structurally similar to the Senate proposal, but commissioners would be appointed by an independent advisory board (independent appointment of commissioners is something that Paterson has described as a ‘deal breaker’).

While negotiations concerning the reforms were derailed by the coup, ethics reform will likely receive consideration again before the end of the legislative term. It’s worth paying attention to the structures that lawmakers put in place to police themselves and their peers before the cash-stuffed cereal boxes turn up in Albany, too.

This Time, Let the Court Decide

The end of the Senate Coup two weeks ago doesn’t mean that New Yorkers have to go without their daily dose of interesting legal wrangling. Last night, a state Supreme Court Justice granted a preliminary injunction preventing Ravich from acting as Lieutenant Governor.

But that’s not the interesting part. Apparently, Governor Paterson’s argument against the motion for an injunction brought by Senate republicans is that it would upset the balance of powers for the judicial branch to rule in this case.

While we strongly opposed judicial intervention in the coup, we have to disagree with Paterson on this one. As the justice puts it in his ruling:

“A controversy is not justiciable if its resolution would require the court to ‘intrude upon the policy-making and discretionary decisions that are reserved to the legislative and executive branches’ […] a court may determine whether the state constitution or the legislature has empowered the governor to act.”

In this case, the court is being asked to interpret the provisions in the constitution and the Public Officers Law that Paterson argues grant him the authority to appoint Ravich, not to intervene in the legislature’s internal politics. Paterson’s argument is particularly baffling given that a central part of his defense of the appointment is a 1943 court case in which the judicial branch was asked to rule on the constitutional authority of the executive branch to fill the office of lieutenant governor. The case provides an interesting precedent and a victory for Paterson will likely require the courts to rule that it still applies today.

While the law has changed slightly since that case, the definition of justiciability has not. And although the coup is over and the impact of a Lieutenant Governor may now be inconsequential, we could stand to have some clarity on the Governor’s ability to appoint the Senate’s presiding officer – after all, a return to deadlock, as Liz Benjamin so aptly put it yesterday, is “just a hissy fit away.”

Measuring the new Senate Rules against the Assembly

The Assembly may come to miss the sideshow in the state’s upper chamber. With the passage of the Senate’s new rules on Thursday, the Assembly now lags far behind in enacting reforms. Here’s a brief rundown of some of the reforms passed by the Senate last week and how they compare to the current Assembly rules.

Impose 8-year term limits on the offices of majority leader, minority leader, temporary president, committee chairs, and ranking members.

BEHIND THE SENATE: Nothing in Assembly rules limits the terms of any leaders.

Allow a bill sponsor to force a committee to vote on her bill within 45 days

BEHIND THE SENATE: Assembly bill sponsors may file a request for committee consideration on a bill, but the committee is not required to act on the request until the end of the second year of the term. (Rule IV § 5 (b))

Allow 1/3 of the members of a committee to petition for hearings on specific legislation (unless majority of members reject the petition.)

ON PAR WITH THE SENATE: In the Assembly, a majority of committee members can petition for a hearing. (Rule IV § 4 (a))

Require the Finance committee and other relevant committees to produce a plan for public hearings regarding impact of state budget

AHEAD OF THE SENATE: The Assembly rules require chairs of each committee to call at least one public hearing regarding the implementation of the state budget. (Rule IV § 4 (b))

Require committees to file annual reports detailing legislative and oversight activities.

ON PAR WITH THE SENATE: The Assembly has a rule requiring annual committee reports detailing activities and legislative proposals. (Rule IV § 9)

Allow members to move bills to the active list over the wishes of the majority leader – bills must receive a vote within four legislative days after a successful motion

BEHIND THE SENATE: The Committee on Rules, which is controlled by the Speaker of the Assembly, determines the order of the calendar. There is no mechanism to allow rank-and-file members to force a bill onto the floor for a vote. (Rule IV § 10(b)(1))

All senators get same base allocation for office staffing and equitable access to common resources

ON PAR WITH THE SENATE: Assembly rules require that members get equal allocations of specific resources, like printing and stationary, and that they should get an equal allocation of base staff funding (Rule V, § 9). It is worth noting, however, that despite the existence of this rule, minority members had budgets that were 33% smaller on average than their counterparts in the majority for the period from October 2007 to March 2008.

Require that all committee records, agendas, votes, minutes, reports, attendance, fiscal notes, active lists, floor votes, floor transcripts, calendars, the payroll report, and expenditure report be made available to the public in a searchable database.

BEHIND THE SENATE: The Assembly rules reaffirm that the chamber will comply with the freedom of information law, but they make no attempt to go further to make legislative records accessible to the public. (Rule VIII)

Strange as it may sound in light of the events of the past six weeks, the Assembly could stand to take a cue from Senate, especially where empowering rank-and-file members (by allowing them to force committee review and floor votes on their bills) is concerned. And if they ever do get around to improving their rules, why not up the ante and establish a committee mark-up procedure and requirements for committee reports?

One Big Step Forward for the Senate; One Big Step Left to Go

Early this morning, the Senate passed a resolution to substantially alter the operating rules of the chamber. The Senate has gone a long way – certainly farther than the Assembly – to reform their leadership-controlled legislative process.

The new rules uphold most of the good changes made by the GOP-Espada coalition on June 8^th, including distributing member resources more equitably, allowing members to move legislation to the floor over the wishes of the majority leader, and imposing term limits on chamber leadership. But they also enacted a suite of new reforms that take important steps to empower rank and file members and increase chamber transparency.

Some of the most important new reforms are:

• Allowing 1/3 of the membership of a committee to petition to hold hearings on specific bills (subject to the approval of a majority of the committee)
• Replacing discharge motions with a motion for committee consideration, under which a sponsor can force a committee to vote on her bill (the new motion doesn’t require a majority vote of the chamber or the committee)
• Allowing committee chairs to hire their own staff - although the rules only force leadership to allocate funding for one staffer per committee.
• Requiring the Senate to make committee records, agendas, votes, minutes, reports, attendance, fiscal notes, active lists, floor votes, floor transcripts, calendars, the payroll report, and expenditure reports available on a searchable public database.

On the whole, the new rules are a significant improvement over what was passed last January. But like the June 8^th rules resolution, this one falls short on reforming the committee process. There is still no process for reading bills in committee or even for requiring committee members to show up to meetings. Committee reports can still be perfunctory and lack any description committees’ work on bills (in addition to making it more difficult for other legislative members and members of the public really understand these bills, a lack of real committee reports -- unique to New York -- makes it exceptionally difficult for the courts to determine legislative intent in difficult cases). And while the new rules allow members to petition for hearings, it does nothing to require hearings on major legislation. All of this means that the only substantive debate on legislation that occurs will probably continue to take place in closed-door party conferences.

But there is some hope. In a statement released last night before the rules vote, chamber leaders said that the Temporary Committee on Rules and Administration Reform will report back in December about committee reform, when they are expected to recommend reducing the number of committee assignments for each member. With extra time on their hands, committee members should be required to do the deliberative work that occurs in nearly every other legislature in the country. Specifically, the Senate should:

• Create a formal process for reading bills for amendments (otherwise known as a "mark-up") and public debate in committee;
• Make more rigorous requirements for committee reports showing the work of the committee on each piece of legislation;
• Allow committee chairs to hire more than one staff person where necessary; and
• Set requirements for committee hearings on major legislation

If they do this, they will finally earn the Brennan Center’s full-throated praise.

Three Reforms for the Post-Coup Senate

This week, the Senate is likely to vote on a new rules resolution that will determine how the post-coup chamber will run. While Republicans have already accused Democrats of reneging on reform, it seems likely that the key changes enacted by the June 8^th rules resolution – including more equitable distribution of resources and a procedure for moving bills to the floor over the wishes of the majority leader – will hold. But both caucuses have been silent on committees, which did not receive much attention during the month-long stalemate, or, for that matter, in the decades leading up to it.

The Senate's failure to address committees is particularly egregious given that a strong committee system could be the best counterbalance to Espada’s power as Majority Leader. If the Senate is to limit the extent to which one or two leaders can control the entire legislative agenda, it will create a deliberative committee process through the following three reforms:

1. Require committees to hold hearings on all bills unless the committee votes to dispense with a hearing;
2. Require committees to read all bills for amendments unless the committee votes to proceed directly for a vote; and
3. Improve the rule requiring committees to produce reports on all bills to include a summary of majority and minority opinions, records of all amendments and comments made by committee members, transcripts of hearings on the bill, and voting records.

If these sound like relatively basic requests, it’s because they are. But they’ll go a long way toward making committees – rather than the whims of chamber leadership – the driving force behind policymaking in New York.

To read the Brennan Center’s complete recommendations for rules reform, including proposed language for incorporating these reforms into the Senate’s operating rules, click here.

Back to Square One?

With Pedro Espada's apparent return to the Democratic conference, everyone is now wondering just how far the Democrats will turn back the clock on the rules changes made on June 8th. By one account, it does not look good. In an interview with Jimmy Vielkind today, Senator Eric Schneiderman said that the rules passed in January still apply.

On the other hand, there is at least a sliver of hope that once the Democrats regain control, they will actually make some long promised changes (which did not occur during their first six months in power). Senator Daniel Squadron has pledged to fight for reform under the renewed Democratic Majority. It is certainly now in the Republicans' best interest to back reforms, and as we've written before, it doesn't take much of a groundswell to form a majority in such a narrowly divided chamber.

But the Senate must do more than uphold the rules passed on June 8th that made it easier to move bills to the floor over the wishes of the majority leader and divided resources more evenly amongst members. The Senate will never be a functional legislative chamber until it reforms its broken committee system to make committees the engine of the legislative process. They must develop a process for reading, debating, and amending bills in committees before the legislation receives a vote, and if all of the legal ambiguities brought to light over the past month has taught us anything, it is that committees must produce substantive reports showing their intent in revising and passing the legislation under their consideration. The rest of the Democratic caucus would do well to not only follow Senator Squadron's lead in pledging to fight for rules reform, but also to look to his committee markup procedure as a model for the road ahead.

The Senate Democrats have been given the rare gift of a second chance. If they turn back the clock on rules and go back to business as usual, they will blow it in record time.

The Role of the Courts in Ending the Gridlock in Albany

Larry Norden is quoted in Crain's New York Business this morning saying that with no clear legal precedent, it's difficult to say how the courts would rule on the Governor's appointment of a Lieutenant Governor. But is worth it to have them hear the case that the Republican caucus has already brought - the courts can clarify once and for all the Governor's power in this area. They may find that he has the legitimate authority give the Senate a presiding officer to shepherd the chamber through its extraordinary session gridlock. We have opposed other attempts to bring the courts into the Senate's leadership fight, but this is an appropriate time for the judicial branch to step in and interpret the law.

Queens Democratic Assemblyman Rory Lancman has a slightly different take on the role of the courts. In an op-ed in Newsday, he argues that by refusing to weigh in on the leadership dispute to date, the courts have been abdicating their responsibility. While have not favored judicial intervention prior to the Governor's announcement that he is appointing a lieutenant governor, Lancman's op-ed is worth a read for another point of view.

When the Law is Ambiguous: Governor Paterson's Power to Appoint a Lieutenant Governor

In a press conference this morning, Assemblyman Michael Gianaris outlined the legal argument, originally proposed by our former colleague Jeremy Creelan, in support of Governor Paterson’s power to appoint a lieutenant governor to preside over the Senate.

It’s an interesting proposal. Because the senate rules state that the lieutenant governor is the president of the senate, this solution would provide the chamber with a presiding officer without requiring the membership to agree on whom rightfully holds the title of majority leader. The lieutenant governor wouldn’t count toward a quorum for the purposes of convening a regular session, but in the daily extraordinary sessions which a judge has ordered the full Senate to attend, a lieutenant governor could help end the stalemate and facilitate the passage of critical legislation. With a majority of Senators necessary to conduct regular Senate business, this solution wouldn’t affect in the ongoing fight to control the chamber in 2010, and the Senate’s warring factions would be free to take as long as they need to reach an agreement about the chamber’s leadership.

But while we’ve been quoted as saying that Gianaris’ proposal is a viable solution to the gridlock in Albany (our full statement says that the Governor may have the power to appoint a lieutenant governor), there are potentially legitimate arguments on both sides.

On the one hand, New York state law would seem to give Paterson the authority to appoint someone to the office. Section 43 of the Public Officers Law says, in relevant part:

“If a vacancy shall occur, otherwise than by expiration of term, with no provision of law for filling the same, if the office be elective, the governor shall appoint a person to execute the duties thereof until the vacancy shall be filled by an election.”

On the other hand, the 1943 state Supreme Court case cited in Gianaris’ letter to Paterson was decided based on the 1938 constitution, which diverges from today’s constitution in several important ways. The decision focuses on whether a clause of the former constitution stating that the president pro-tempore of the Senate shall preside over the chamber in the absence of a lieutenant governor constitutes a provision for filling a vacancy in the office of lieutenant governor. While the court ruled that this provision did not mean that the senate president assumed the office of lieutenant governor, it based its decision on the fact that presiding over the Senate is just one of the responsibilities of the office of lieutenant governor. The constitution used today reads a little differently with respect to succession to the office of lieutenant governor:

“In case of vacancy in the office of lieutenant-governor alone, or if the lieutenant-governor shall be impeached, absent from the state or otherwise unable to discharge the duties of office, the temporary president of the senate shall perform all the duties of lieutenant- governor during such vacancy or inability.” [emphasis added]

We don’t have a conclusive answer as to whether this constitutes a provision of law for filling the office of lieutenant governor (as opposed to a provision for someone to assume the responsibilities, but not the title of the office) but it’s certainly not a slam-dunk for Gianaris’ side.

In the end, the question for the courts would be, once the temporary president assumes all the duties of lieutenant governor, has the vacancy in the lieutenant governor's office been filled? If it has not, as Jeremy Creelan argued in the Daily News, then the Governor might have the power to appoint his own choice to temporarily fill the vacancy, pursuant to Section 43 of the Public Officers Law. Creelan has also pointed out that, in contrast to other offices, the drafters of both the constitution and the Public Officers Law never explicitly exempted the lieutenant governor's office from those that could be filled by the governor.

Despite the potential problems with Gianaris’ proposal, it merits serious consideration. The mere possibility of ending the current gridlock that is holding critical legislation hostage might be reason enough to take Gianaris’ theory for a spin. The courts exist to help navigate exactly this type of legal grey area, and it seems like there would be a real value to allowing them to weigh the merits of the arguments made today.

Brennan Center Statement on Gianaris Proposal for Appointing a Lieutenant Governor

Today Assemblyman Michael Gianaris (D-Queens) outlined the legal argument supporting Governor Paterson's power to appoint a Lieutenant Governor to preside over the Senate chamber.

Such an appointment would provide the Senate with the leadership necessary to pass critical legislation during extraordinary session without intervening in the ongoing fight for control of the Majority Leader and President Pro Tempore positions or affect the leadership of the Senate in 2010.

"This proposal seems to provide a viable roadmap for ending the current gridlock in Albany," says Lawrence Norden, senior counsel at the Brennan Center for Justice. "The law suggests that the Governor may have the ability to facilitate the passage of necessary legislation while staying well within the powers of the executive branch."

"A Lieutenant Governor would not affect the number of Senators necessary to call the Senate into regular session," continued Norden. "However, all members are under a court order to appear for extraordinary session. This means there will be a quorum for all extraordinary sessions, and the new Lieutenant Governor could act as presiding officer of the chamber to ensure that legislation on the calendar for such sessions received a legitimate vote."

A Way Out of the Senate Logjam NOW

The mess in the State Senate is starting to have serious consequences. After a three-week deadlock over control of that body, the Senate today watched a number of deadlines pass. Several jurisdictions had hoped to extend or increase certain taxes to fill budget holes, and there is confusion over who controls New York City schools. Meanwhile, a bill to increase jobless benefits cannot be passed, power rates for many local businesses are likely to spike because subsidies have expired, and several local jurisdictions are warning that they may have to raise property taxes and fire local employees, including police.

Various members have noted that they are "embarrassed" and "frustrated" by what's happened. There is a simple solution to getting us out of this morass, and Senator Frank Padavan may have inadvertently provided it when he walked into the Senate chamber yesterday looking for a cup of coffee. Democrats claimed they had a momentary quorum, and that all subsequent matters voted on should count.

While nobody seems to be buying this claim, it raises an obvious question: why doesn't one member, working with the Governor, break this logjam -- at least for non-controversial items that will allow local jurisdictions to balance their budgets.

After all, every session for the remainder of the month will be an extraordinary session. The Governor sets the agenda, and article IV of the state constitution dictates that Senate can only vote on those items he gives them permission to address. A member of either party, Democrat or Republican, can simply wander over to the other side and LET them have a quorum for the day. Important legislation that everyone agrees needs to be passed can be passed.

In this scenario, the Senate can keep fighting over who gets to call himself Majority Leader until next year -- but important legislation, thousands of jobs and the economy of the State would no longer be held hostage by the bickering factions.

Of course, this would mean earning the wrath of one party leader or another -- but all for the good of the people of New York, something that frustrated voters would certainly understand. Can we have a volunteer?

(Drafted with Eric Lane)