Will A Divided Senate Chamber Be Good For Reform?

The New York Times says it looks as though the State Senate will be split, 31-31 between Democrats and Republicans. Could this be good for structural reform of the chamber? There is at least a plausible case to be made that a chamber split exactly in half could help make the Senate the more accountable, transparent and deliberative body we at the Brennan Center have been calling for over the last 6-plus years. Rather than turn to one or two leaders to work out deals with the Assembly Speaker and Governor, and to develop policy entirely behind conference doors, an evenly divided Senate might be forced to debate and compromise in public. Actual substantive work could be done through committees and during committee meetings.

While it's true that things didn't work out too well last session, when the chamber was also closely divided, that's in large part because the old model for the chamber stayed in place. Democratic members defected, and then defected back, but the idea that nearly all of the substantive work and decisions should be done behind closed doors largely remained -- the only questions was which set of leaders held the reins (though certainly not entirely -- credit should be given where it is due, and though New Yorkers could be forgiven for missing it in between the coups and corruption scandals, the Senate did take some important, if small steps toward greater transparency, deliberation, and accountability).

There is the possibility that this time around, the parties will agree that because it all can't get done behind closed doors ahead of time, creating a legislature that works -- where individual members propose, debate and develop ideas in committees, and where compromise is a necessary part of passing any legislation -- will be in everyone's best interest. We can hope, anyway.

A Test of New York's Barriers to Open and Competitive Elections

A Quinnipiac Poll released yesterday shows approval for the state legislature at an all time low, with record numbers of voters (more than half, in fact) saying they would vote against their own legislators.

As in the rest of the country, there is clearly massive discontent with the status quo. But whereas this has already meant that many incumbents around the country have been ousted, and a "tidal wave" of change is predicted throughout the country in November, New York may yet again be the exception.

We have long argued that despite wide-spread discontent in New York with our government, barriers to open and competitive elections -- including the power of party bosses and legislative leaders to punish dissenters, an opaque legislative process that makes it hard to hold individual office holders accountable, exceptionally weak campaign finance laws, a closed redistricting process, and arcane and difficult ballot access laws -- meant that voters could not adequately express that discontent at the ballot box. Over the past few decades state legislators have enjoyed one of the highest re-election rates in the country at approximately 99%.

Has the tide of voter discontent in New York reached so high a point that large number of incumbents will lose in New York, as they seem destined to (and in some cases already have) in the rest of the country?

Goodbye and Thanks, Jay

We were saddened to learn this morning that Jay Gallagher, veteran of the Capitol Press Corps in Albany, passed away last night after a difficult struggle with pancreatic cancer. Right up until the end, Jay continued to serve our state by asking lawmakers tough questions and opening state government to the people. Throughout his illness, Jay continued to share his incisive commentary on state politics through a League of Women Voters blog, and less than three weeks ago, Jay served as the voice of voters and good government advocates at Albany on the Record.

Jay’s love of New York was evident in everything that he did, and over his 25 years of covering state government, he made our state better in ways both large and small. He will be missed. To read the moving eulogy released by Jay’s daughters this morning, click here.

Setting the Record Straight on New York Uprising

The Brennan Center never provides material support to efforts to influence the outcome of elections. An article in last week's Legislative Gazette incorrectly stated that New York Uprising, which has successfully obtained pledges from gubernatorial candidates regarding redistricting reforms, had received support from the Brennan Center and other good government groups. The Brennan Center has studied redistricting for a decade: our extensive materials are available on our website free of charge, our attorneys regularly speak with groups of all kinds as part of our education and outreach about this issue and we often comment on various proposals for reform. Deeply committed to reform of New York’s state government, we do not oppose or support any specific candidates, and, by extension, candidate pledges.

Liveblogging Albany on the Record

Join us at 11am tomorrow, May 5 for live commentary from Albany on the Record!

Albany on the Record

At a press conference today in Albany, another non-partisan group working for more open and accountable government was launched. "Reinvent Albany" is looking to shake things up in our state capitol. They've already announced their first event, Albany on the Record, which will be held in Albany on May 5th. The purpose of the event is to get the state’s top elected officials to tell New Yorkers how they will restore the public’s trust, and put them on the record for what reforms they will fight for during the next legislative session. Albany on the Record will be webcast live from Empire State Plaza. The Brennan Center, Citizens Union, Common Cause, the League of Women Voters, and NYPIRG are joining Reinvent Albany in sponsoring this event.

CORRECTION: When we initially posted this item, we erroneously omitted our good friends at the League of Women Voters of New York. We sincerely apologize for the unintentional oversight.

And Another One

Following on the heels of Larry’s post from yesterday about Jay Gallagher’s new blog, we’re happy to call your attention to yet another new voice on the Albany blog scene. Reboot NY, a new PAC dedicated to reforming the state senate, has a blog chronicling the chamber’s dysfunction. We don’t take a stance on the individual legislators and candidates who the group supports and opposes, but we can get behind its founders when they say that reform has to be the top priority for voters and legislators alike.

Better Late . . . .

We're a little late to noting this, but Jay Gallagher, one of the most knowledgable Albany reporters around, has a new blog with the League of Women Voters. No surprise -- it's great stuff. Check it out.

The Monserrate Legal Battle: A Brief Primer

Tuesday’s vote to expel Hiram Monserrate from the Senate is the latest development in one of the livelier constitutional debates in New York since last summer’s Senate coup. Monserrate’s attorneys filed a request for a temporary restraining order and preliminary injunction delaying his expulsion in federal court today.

Monserrate’s supporters rely on two arguments as to why the Senator’s ouster is illegal. First, they argue that his removal denies his right to due process of law, and that only his constituents can legally remove him from office (by voting him out at the next election, as New York doesn’t have a recall process).

Black’s Law Dictionary defines due process, which is guaranteed under the New York and United States constitutions, as “[t]he conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case.”

Others argue that the ‘rules and principles’ in question here are codified in a section of legislative law that grants the Senate the authority to decide the case. This section reads: “Each house has the power to expel any of its members, after the report of a committee to inquire into the charges against him shall have been made.” As followers of the Monserrate saga know, the Senate did, in fact, convene a committee to inquire into the charges against the Senator, and Tuesday’s vote conforms to the recommendations made in the committee’s final report.

The second argument against expulsion made by Monserrate’s attorney is that the Senate lacks the constitutional authority to expel a member. The attorney, Normal Siegel, argues that given that New York’s colonial charter granted the legislature the right to expel its members, when the state constitution was changed in 1821 to remove a clause stipulating that the state legislature would “do business in a like manner as the assemblies of the colony of New York,” it deliberately disallowed expulsion.

At least six members of the legislature have been expelled since 1821, including five Assemblymen accused of disloyalty on account of their affiliation with the Socialist Party in 1920. That hasn’t settled the debate over constitutional authority to expel, however. In 1987, an Assembly committee considered whether it had the authority to expel an Assemblywoman who was guilty of payroll fraud. In what is commonly known as the Lipschutz Report, the committee held the same view as Monserrate’s attorney that expulsion is not permissible in the absence of explicit constitutional authority. The Monserrate Committee disagrees, obviously, citing an 1874 legal scholar’s opinion that, “[i]n the states of Massachusetts, New Hampshire, New York, and North Carolina there being no constitutional provision on this subject, the power to expel exists as a necessary incident to every legislative body and may be exercised at the discretion of the assembly and in the normal way of proceeding.”

At the end of the day, it will be up to a judge to sort this out. Let’s just hope that the now nearly dead-even partisan split in the Senate doesn’t precipitate another thorny legal fight over legislative procedure.

A Step Forward on Debate

Notwithstanding everything said in the previous post about the process by which the ethics bill was passed, the Senate had a fairly substantive floor debate on specific provisions of the bill this afternoon (the transcript should appear here soon). We would have preferred if that debate was informed by hearings that included input from the public and experts, but we're happy to see this bit of process progress in the Senate.

Victory in Defeat?

Today, in an incredibly rare move, the Senate voted down a bill – this one to legalize same-sex marriage.

Disappointing though the result might be, the bill’s failure symbolized a departure from business as usual in the Senate, and gave advocates for marriage equality a critical tool in pushing similar legislation next year.

During debate on the bill, Sen. Diaz, one of the eight democrats who voted against the legislation, called Majority Leader Malcolm Smith “treasonous” for not keeping his word with respect to a deal reached last January that included Smith’s promise to keep the marriage bill from coming to the floor for a vote in exchange for Diaz’s participation in the Democratic caucus. Normally, a bill only reaches the floor with the approval of chamber leadership and a guarantee of passage.

But today, for the first time, the Senate created a public record as to where its members stand on the issue of marriage. While some Senators were outspoken in their support for or opposition to the bill, it was never 100% clear until today who the five or six democratic holdouts were, and the fact that the bill lost by the margin it did was a surprise to most who have been following this issue closely.

Openness and accountability are critically important to representative government. In the past, leadership has shielded members from having to take votes on controversial issues and the result has been that voters haven't known who to blame for a bill's failure to pass. That's bad for New York, because it keeps the legislature from tackling difficult issues, and it's bad for New Yorkers, because they lose the ability to hold their members accountable.

One thing we are pretty sure of is that many, many New Yorkers will know how their Senators voted on gay marriage when they go to the polls next November. That's the kind of significant information they haven't had in the past. The majority of New Yorkers who support same-sex marriage and those who oppose it will now have a better opportunity to make sure that their views are reflected in the votes of their elected representatives.

UPDATE: In a previous version of this post, we indicated that the Senate has voted down a bill on only one other occasion in recent memory. We were incorrect. During two of the Senate's post-coup all-nighters, a total of three bills were voted down on the floor. An additional two bills were tabled due to a lack of support on the floor, again after the coup. We stand corrected.

"This way you do business . . . is against the law."

That is the essence of the federal charges against former Senator Majority Leader Joe Bruno, and, in a way, all of Albany. Or so says an unnamed political operative in a New York Times article by Nicholas Confessore entitled "Bruno's trial seen as a hearing on Albany."

I made much the same point in an AP article authored by Michael Virtanen. Regardless of what the eventual outcome of the Bruno trial, the trial itself is bound to give us weeks of headlines that highlight the pay-to-play culture that so many in Albany take for granted. We can only hope that this will shame the legislature enough to force more reforms, and continue to chip away at the stranglehold party leadership and certain vested interests have over the state.

TUESDAY: Reforming Albany: What Is Wrong with the State Legislature and How to Fix It

On Tuesday, October 27, the Brennan Center will join the New York Lawyer Chapter of the American Constitution Society in hosting a panel discussion entitled Reforming Albany: What Is Wrong with the State Legislature and How to Fix It.

The event features Assemblymember Hakeem Jeffries, AD 57; State Senator Daniel L. Squadron, SD 25; Susan Lerner, Executive Director of Common Cause/New York; and Edmund J. McMahon, Director of the Empire Center for New York State Policy at the Manhattan Institute for Policy Research. Our own Larry Norden will moderate.

What: Reforming Albany: What Is Wrong with the State Legislature and How to Fix It
When: Tuesday, October 27, 2009, 6:30 PM
Where: New York University School of Law
Vanderbilt Hall, Greenberg Lounge
40 Washington Square South
New York, NY

We hope to see you there!

A Blueprint for Fixing Albany

Today, the New York Times ran an editorial assessing the problems in New York and what needs to be done to fix them. Calling the state a “national embarrassment” and “a $131 billion monster controlled by a crowd of smug officials whose main concern is keeping their soft jobs,” the Times outlines a must-do list for state lawmakers. The editorial says what recent polls have already suggested – with the 2010 election a little over a year away, lawmakers fail to reform state government at their peril.

The editorial lays out a laundry list of areas for improvement that it will profile in detail in the coming weeks:

• Ethics Reform. The Times calls for “independent monitors with powers to oversee the ethics of those in the state government and Legislature.”
• Campaign Finance. Advocating a public financing model, the Times calls for “strict rules for reporting and using that money.”
• Budget Reform. The Times demands a more transparent budget process.
• Pension Reform. Of the fact that the comptroller is the sole trustee of the state’s pension fund, the Times says, “This should not be happening anywhere, but especially not in Albany.” The editorial supports Cuomo’s proposal for a 13-member commission to manage pensions, but cautions that the commissioners must be carefully chosen.
• Modernize Voter Registration. Echoing the paper’s support of a national proposal to reform the voter registration system, the Times says it’s time to make it easier to register to vote in New York.
• Redistricting Reform. One of the causes of stagnation in Albany is the process by which legislators draw their own districts – and choose their own voters. The Times advocates putting redistricting in the hands of an independent commission.

Some members of the New York state legislature are probably beyond redemption, but for those who still wish to accomplish something for New York State, the blueprint outlined by the Times is a great place to start.

What to Do About Monserrate?

As most of our readers now know, Hiram Monserrate, the Senate coup instigator accused of slashing his girlfriend in the face with a broken glass last December, was charged yesterday with a misdemeanor – not for the slashing itself, but for Monserrate’s rough treatment of his girlfriend caught on security video as the couple left for the hospital later that evening.

Had Monserrate been convicted of a felony, he would be forced to surrender his seat in the Senate. But because his crime is a misdemeanor, there is no requirement that he step down, even if he is sentenced to jail as his conviction allows.

Yesterday, Democratic Conference Leader John Sampson issued a statement saying that the “leaders of our conference are discussing the potential for further action in the Senate” and that they will “follow the letter of the law” should they choose to take action. Three Democratic senators issued even stronger statements today calling on Monserrate to resign and saying that they will work to remove him from the Senate if he does not step down voluntarily. Two more of their colleagues joined their call this afternoon.

It turns out that the letter of the law to which Sampson refers is quite clear. Section 3 of the New York State Legislative Law states in full: “[e]ach house has the power to expel any of its members, after the report of a committee to inquire into the charges against him shall have been made.” The law does not specify the structure of the committee or what the report must find.

Malcolm Smith, still the nominal Temporary President of the Senate, has the authority to convene a temporary committee to investigate the claims against Monserrate or to delegate the inquiry to a standing committee – say, the Ethics committee, chaired by Sampson himself. The evidence against Monserrate has already been aired in court and is publicly available. Once this committee submits a report on their findings, the question of Monserrate’s expulsion can be put to the chamber for a vote. If the sentiments of the growing number of Senators who have already spoken our against Monserrate are reflective of the rest of the chamber, it should be a pretty easy one.

Voters Get It and the Times Confirms It: New York Has a Long Way to Go

In response to a Qunnipiac poll showing that nearly 80 percent of New Yorkers think that the state government is broken, Assembly Speaker Sheldon Silver expressed sympathy for voters’ sentiments toward the Senate and dodged any blame for his own chamber.

It would be an audacious move for a man with a 28% approval rating on any day, but it’s particularly interesting that Silver would choose to slam the Senate today, when the New York Times reports that several members of the state legislature – mostly in the Assembly – collect pensions on top of their salaries by retiring for a single day at the end of their terms before a new term, and a new salary, begins.

Loopholes in the law exempt lawmakers elected before 1995 and those who switch chambers from restrictions on collecting pensions while working, and elected officials are not required to get waivers required of other state employees to draw on pensions while earning more than $30,000 a year. A bill introduced last year to close the loophole languished in committee.

Even pension reforms that seem like easy political sells aren’t doing so well. A bill by Assemblyman Bob Reilly and Senator Liz Krueger denying pensions to public officials convicted of crimes (an issue near and dear to many recent members of the legislature) can’t get past committees in either chamber.

The Senate sideshow showed how spectacularly bad things can get, but it’s important to remember that it was a symptom of a much more widespread disease. The good news, as demonstrated by the Quinnipiac poll, is that voters recognize that we have a problem – even if Silver doesn’t.

More Ink for Reform

The Daily News has run two stories this week about Albany's dysfunction, both of which quote our own Larry Norden. Sunday's article gives a broad overview of the 'disgraceful' state of affairs, and an article running today focuses on the leadership stranglehold on the legislative process. The bottom line of both articles is simple: enough is enough - time to clean up in Albany.

Handing over the Keys to the...Brunomobile?

We’ve written plenty about the inequitable distribution of member resources in the Senate, but lack of transparency obscured the full picture of just how bad it really was.

According to a story in yesterday’s New York Times, it was pretty bad – or good, if you’re in it for the entertainment value.

The Times reports that while conducting an assessment of how the Senate budget is allocated, Democrats have uncovered a slew of perks, ranging from the cushy to the bizarre, that Republicans granted themselves during their 44-year reign in the majority. Some highlights:

• A secret TV studio used to record cable access shows
• More than 800 parking spaces near the capitol
• A bloated payroll and preferential printing at the Senate printing plant

And most certainly not least:

• The “Brunomobile,” a van with six leather pilot chairs (some of which swivel, notes the Times) and its very own conference table.

Senator Smith says that the Majority is still trying to track down everyone on the 1,200 to 1,500-member Senate payroll, which might be tough, because nobody is quite sure exactly how many employees there are.

Brennan Center Memo to Senate Dems

For those wondering about our reaction to the Senate Democrats' current proposal to change the Senate's rules, here is a memo from the Brennan Center, Common Cause, the Empire Center and NYPIRG, sent to the Senate Democrats this morning. Shorter version: we appreciate the (small first) steps you are taking; we wish you would do more now; at the very least, we'd like to see more transparency in the chamber required immediately; we're hopeful that the "temporary committee" you've set up to examine rules will -- as you promise -- make bigger, needed changes, and we will work with you to make that happen; the sooner this bigger change happens, the better for all New Yorkers.

Election-Related Violence in NY

Earlier this week three Staten Island men, ages 18, 18 and 21, were charged with federal crime of interfering with voting rights on Election Night. The trio went on a violent rampage when it became clear the Barack Obama had won the election. According to the federal indictment, they "decided to find African-Americans to assault in retaliation for an African-American man becoming president." Among a number of especially violent assaults, they struck a man with a car they were driving.

These alleged acts, prosecuted as a federal crime, are horribly despicable. Voter intimidation and deception is rarely violent, but by no means rare. Nearly every election turns up fliers with misleading information including false endorsements or the incorrect day of the election. The case of challenges inside a Yonkers gym in the election of State Senator Andrea Stewart-Cousins in 2006 is a good example.

New York should also be able to prosecute voter deception and intimidation in state or municipal elections. There is already a model for legislation. In 2007, President-elect Obama introduced the Deceptive Practices and Voter Intimidation Prevention Act in the Senate. In addition to making such acts criminal offenses, the bill empowered the U.S. Attorney general to correct false information and submit a report summarizing any related activity to Congress.