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.

Kelly Williams: Do New Yorkers deserve better government, or really good government?

Governor David Patterson’s proposal to dismantle the Commission on Public Integrity and replace it with a smaller panel structured in a way to minimize political influence, with jurisdiction over legislators and expanded powers, would fill some of the voids in ethics oversight in New York State government, but more would be accomplished if Albany chose to open this process to scrutiny and debate.

In January 2007, newly-elected Governor Eliot Spitzer and legislative leaders announced the first major overhaul of New York State’s ethics laws in 20 years. Crafted behind closed doors, in typical fashion the package passed two months later without a hearing or discussion of possible alternatives and improvements. It was a lost opportunity: the reforms left in place New York State’s lax financial disclosure and campaign finance laws, and as we now know, created an oversight entity vulnerable to charges of undue influence from the executive. Also, legislators refused to cede oversight of their activities to an independent entity. The National Conference of State Legislators reports that thirty-three states have independent ethics commissions with broad enforcement powers over state legislators. New York is one of just a handful of states with separate, self-policing legislative bodies.

Should ethics reform be a business-as-usual behind-closed-doors kind of thing? Like spring flowers, reforms aimed at corruption and undue influence have been happening all around us: though far from perfect, legislators in Connecticut, North Carolina, Alaska, Illinois and several other states have passed various reforms that merit scrutiny and comparison, a buffet of alternatives for New York State. An open discussion (and vote?) would air alternatives and might result in innovative change based on tested systems.

Kelly Williams serves as Counsel in the Brennan Center's Finance and Operations Department.

Markup Video Now Online

The video of last week's Cities Committee markup session is now online on the committee website.

A Look at the Minority Report on Rules Reform

Yesterday, three Republican members of the Senate’s Temporary Committee on Rules and Administration Reform released a minority report detailing areas where they felt that the committee fell short.

Unsurprisingly, the emphasis of the report is on equal allocation of resources, a familiar refrain for Republican Senators once they became the minority party.

While we would have liked to see more passion for other aspects of reform, the committee did rightly point out a few important areas where there is more work to be done, including developing a process to force a floor vote on a bill, developing rules for committee amendments, and allowing committee chairs or bill sponsors to convene conference committees.

While none of these ideas went completely unaddressed in the Temporary Committee’s main report, it’s good to see more senators going on the record as being committed to making sure that these reforms are accomplished in the next few months.

Committee Markup Recap

This morning, the Cities Committee used a markup process based on Brennan Center recommendations to consider, debate, and revise a Tenant’s Rights bill sponsored by Senator Liz Krueger.

The meeting, which was broadcast live online, featured amendments (and amendments to amendments) to the bill, debate about specific language and the best ways to address related issues, and clarification questions that helped to define areas where future research is necessary.

Senator Krueger says that the markup improved her bill, and describes the process the committee used as an “excellent model.”

We’re thrilled to see committees doing the substantive work that they are intended to do, and we applaud the Cities Committee and its chair, Senator Daniel Squadron, for showing the public and their peers how it’s done.

Now, the onus is on other Senators to follow Senator Squadron’s and Senator Krueger’s lead.

Committee Markup Test Drive

Tomorrow at 9:30, the Cities Committee, chaired by Sen. Squadron (who also sits on the Temporary Committee for Rules and Administration Reform) will experiment with a bill markup and amendment process based on rules suggested by the Brennan Center. The meeting should be broadcast online – we’ll be watching, and we’ll bring you the full report tomorrow.

This should be an opportunity to see substantive committee work on a bill, and we hope that others will follow the Cities committee's lead in working toward a committee structure that allows legislators to take an active role in shaping and improving the legislation under their consideration.

Public Markup before Committee Markup?

Last week, the Senate unveiled a new website that Majority Leader Malcolm Smith promises will help “put the Senate into the hands of the people.”

The site includes lots of new features like links to members’ Twitter feeds and an “Open Data” page that includes budget and appropriations information, but we were particularly drawn to a section of the new site called “NYSenate Markup.”

Given our concern about the Temporary Committee on Rules and Administration Reform’s failure to recommend a robust committee markup or amendment process in its recent report, we were intrigued by such a prominent reference to markup on the Senate site.

The online markup feature allows an opportunity for public comments on legislation, a worthwhile goal that has been stymied in the past by secret deliberations on legislation and a lack of committee hearings. But a piece of the puzzle is still missing.

When one visits the federally-focused website on which the feature is based, the first thing you see is a prominent definition of ‘markup:’ “The process by which congressional committees and subcommittees debate, amend, and rewrite proposed legislation.” Allowing the public to take a crack at this process is a great idea, but the more basic principle that committees should substantively work on legislation has yet to be affirmed in New York.

We're thrilled that the Senate is thinking big, but big ideas may never become a reality if the chamber's rules don't provide lawmakers with the tools they need to incorporate public input and their own expertise into the legislation under their consideration.

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.

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.

Why Rules Still Matter

Yesterday, the day 3000 pages of budget bills hit state legislators’ desks in advance of a vote scheduled for only 48 hours later, the Times ran a story on Assembly Speaker Sheldon Silver's unprecedented power in Albany. The story details Silver’s stranglehold on the legislative process in general, and the budget process in particular, attributing this year’s secret-even-for-Albany negotiations to Silver’s penchant for closed-door meetings and something hovering between oligarchy and autocracy. Readers of the article could be forgiven for thinking that we've never been further from meaningful reform in Albany, but we prefer to see the article as an illustration of why legislative rules are so important -- and why it may be darkest just before the dawn.

It will take more than one or two individuals to loosen the Speaker's 15-year grip on the legislative process; the legislature needs the weight of an entire chamber to act as a countervailing force. A robust committee process, regular and substantive legislative analysis, and rules that protect the voices of rank-and-file members can all help ensure that the locus of power in the legislature lies with the body of representatives elected by New York voters, and not with any one individual. With the recommendations of its Temporary Committee on Rules Reform due in just a week or two, the Senate may well become this essential counterbalance to unchecked power.

Now back to those budget bills. Speaker Silver has often touted the punctuality of his budgets, arguing that open budget negotiations might get in the way of meeting the state deadline. Looking around the country during budget season, it’s clear that this is a false tradeoff. Ohio, faced with the same number of weeks to consider its budget as New York, holds extensive budget hearings. Virginia, acting under similar time constraints, posts all budget documents, including early proposals, on a website where members of the public are welcome to comment. A total of nine states have budget deadlines similar to New York’s, but only New York shuts rank-and-file legislators and the general public so completely out of its budget process.

The Cautionary Tale of MTA Math

Yesterday, the Times ran a story with the ignominious headline, “Math Appears Faulty in Senate MTA Plan.”

It does indeed.

The problem, as it turns out, is twofold: first, the plan added the cost of buses to be subsidized by the payroll tax to the MTA’s income, rather than removing the cost from the balance sheet; and second, the plan accounted for four quarters of payroll tax revenue in 2010, even though it will only have access to three quarters of tax revenue (fourth quarter payroll taxes are not available until the following year).

Both are easy enough mistakes to make, but this is exactly why the Senate rules require a fiscal note prepared by a Budget Division analyst to be attached to any bill before the bill is reported from committee. As we wrote in our most recent report, bill sponsors do not always submit fiscal notes when they should and the quality of the notes is highly variable.

We have yet to see the legislation that would enact the Senate Majority proposal, and when we do, the mathematical errors will in all likelihood be corrected. But given the March 25^th deadline for the legislature to pass a rescue plan, it’s frightening to think about how close the Senate may have come to swiftly ushering a deeply flawed bill through the legislative process.

Rules - as they say - are there for a reason, and when the legislature is operating under a tight timeframe, the Senate’s own rules may prove more important than ever.

Larry Norden's Testimony Before the Temporary Committee on Rules Reform

Tonight, our colleagues Larry Norden and Eric Lane will testify before the Senate Temporary Committee on Rules Reform here in New York City.

The full text of Larry's testimony is now available on the Brennan Center website.

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.

There's Still Time to Weigh in on Rules

The temporary Senate committee charged with reviewing the chamber’s rules has been traveling the state this month to hear testimony from New Yorkers about their perspective on the legislative process.

Two hearings – one in Syracuse and one in Albany – have already taken place. In Syracuse, advocates called for stronger committees, greater transparency, and equal resources for members.

Two more hearings are scheduled for later in the month – one on Long Island and one in New York City, where our own Larry Norden will testify:

Thursday, February 26^th, 6:00 – 9:00pm
New York State Senate Hearing Room
250 Broadway
New York, NY

Friday, February 27^th, 10:00am – 1:00pm
Captree Commons Room 114
Suffolk County Community College
Brentwood Campus, Crooked Hill Road
Brentwood, NY

For more information or to sign up to testify, visit the temporary committee’s shiny new website, which debuted yesterday.

Inability to attend the hearings is no excuse for not speaking up: individuals can also submit written testimony to reform@senate.state.ny.us.

The Best Bad News We've Heard All Day

Amidst all of the excitement of being tapped as the republican nominee for Kirstin Gillibrand’s vacant house seat, Assemblyman James Tedisco found the time last week to introduce four rules resolutions in his chamber, reflecting many of the recommendations we made in our recent report.

Among the highlights:

• Giving members the right to have bills drafted within a reasonable period of time

• Limiting the number of bills a member can introduce in the Assembly to thirty

• Ensuring that conference committees include members from each party proportional to their representation in the chamber

• Rejecting messages of necessity not approved by a two thirds majority of the chamber

• Requiring actuaries who prepare fiscal notes to attest to no conflict of interest

All of the resolutions failed, even the one that made the single, seemingly modest request that “Access to rooms and facilities by the Minority shall not be unreasonably withheld and once granted, not changed without consent.”

But it’s not all bad news. Three of the bills had meaningful, if not substantial, bipartisan support. Nine democrats voted for at least one of the four resolutions, and both the resolution supporting proportional representation on conference committees and the resolution requiring actuaries who prepare fiscal notes to attest to no conflict of interest received eight democratic votes.

It may not sound like much, but it’s a step in the right direction.

The forecast in Albany: Still not enough sunshine

Our colleague Andrew Stengel and ally Lise Bang-Jensen of the Empire Center have an op-ed in Newsday today about government transparency in New York.

The bottom line: The Governor, the Attorney General, and the Comptroller have all taken steps toward greater openness, but we can't have complete transparency without the legislature. It's up to them to post legislative records online and to pass legislation requiring proactive disclosure of public records.

Senate Temp. Comittee Members a Good Sign

The members of the Temporary Committee, charged with making recommendations about reforming the rules, were announced yesterday. As we had hoped, it includes Senators Liz Krueger and Daniel Squadron, two vocal proponents of rules reform. (We've already applauded to Co-Chairs.) It also includes a number of avowed reformers on both sides of the aisle, including Senator George Winner, now of the minority, who gave a passionate speech in the chamber debating the current rules changes this past Monday.

The complete committee membership:

• Co-Chair: Sen. David J. Valesky (D-Oneida)
• Co-Chair: Sen. John Bonacic (R-Mt. Hope)
• Sen. Liz Krueger (D-Manhattan)
• Sen.Jeff Klein (D-Bronx)
• Sen. Jose M. Serrano (D-Bronx/Manhattan)
• Sen. Andrea Stewart-Cousins (D-Yonkers)
• Sen. Daniel Squadron (D-Brooklyn/Manhattan)
• Sen. George Winner (R-Elmira)
• Sen. Joseph Griffo (R-Rome)

Senate: One Step Forward

Yesterday, the State Senate passed rules changes, which represents progress even if it was only part of the Brennan Center's recommendations.

The resolution, which expires at the end of 2009 and requires new rules for next year, also created a nine-member Temporary Committee on Rules and Administration that will make recommendations for further reform by April 13. The bi-partisan co-chairs of the Committee (one each from the majority and minority) are a first good sign: Senators David Valesky and John Bonacic. Senator Valeksy ran as a reformer in 2004 after the Brennan Center's original Rules Report and Senator Bonacic is known to have an independent streak.

There remain seven other appointments to the Committee, five majority and two minority. We hope the new majority assigns some of the avowed reformers including Senators Liz Krueger and Daniel Squadron. That would be a second good sign before the business of Committee begins.

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.

Assembly's New Old Rules

With all the attention paid to the Senate last week, most missed that the Assembly adopted it internal operating rules before the State of the State on Wednesday. Do the new rules reflect any of the recommendations made in Still Broken, the Brennan Center's legislative reform update?

Do they remove the stranglehold of leadership so that committees will be the locus of legislative activity? Make it easier for the rank and file to force a hearing on legislation or for oversight? Relax the rules around discharge motions? Increase transparency by putting votes, minutes, fiscal notes, expenditures on the web? Make the allocation of resources among the majority and between the majority and minority more equitable?

None of the above. They simply passed what was in effect during last session.

The body of Assembly Resolution 6 reads:

ASSEMBLY  RESOLUTION  providing  for  the  adoption of
the Rules of theAssembly for 2009-2010

RESOLVED, That the Rules of the Assembly for 2007 and 2008, 
as  last amended, be adopted as the Rules of the Assembly
for 2009 and 2010.

Meanwhile the Senate votes on their rules this afternoon.

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.

Silver's Response to Brennan Center Report Misses the Mark

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

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

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

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

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

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

• End empty seat voting to ensure that Assembly members fully participate in the legislative process and are publicly accountable for their votes.

• Create an open and transparent budget process through joint Assembly – Senate conference committees that analyze and hear public testimony on every aspect of the state’s fiscal plan.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Brennan Center to Senate: This is Your First Test

Yesterday, joined by our friends from NYPIRG, the Empire Center for New York State Policy, and Common Cause/NY, we released Still Broken: New York State Legislative Reform 2008 Update. The report, an update to the Brennan Center's 2004 and 2006 studies of the New York State legislative process, finds that the legislature continues to fall short on a number of measures of legislative transparency and robustness.

The report got the attention of reporters from Newsday, The Daily News, The Albany Times Union, and Public Radio, among others. A New York Times editorial published today echoes the Brennan Center's call for change.

While the report finds that not much has improved in the past two years, we have reason to hope that this year, things will be different. In the words of report co-author Andrew Stengel:

While there isn't much to cheer about looking back in either chamber, there is the promise of substantial reform from the likely new incoming Senate majority. We hope at least one chamber will reform the rules needed to remake the legislature.

Now, the question that remains is whether the incoming Senate leadership will keep their promises.

Ethics in NY, Wherefore Art Thou?

This weekend we learned, despite appearances to the contrary, Florida is actually the most corrupt state, as measured by the number of convicted elected officials in the past 10 years. What about New York According to the New York Times, we rank second on that score. (And 23rd per capita.)

And yesterday, Clyde Haberman proved a good summary of recent (mis)doings in the state.

Legislative Reform 2008 Update Now Due on Jan. 5

Still Broken: New York State Legislative Reform 2008 Update will now be released in Albany on Monday, January 5.

New NY Legislative Reform Report Out on 12/18

The newest edition of the Brennan Center's Report on New York State Legislative Reform will be released in Albany on the morning of Thursday, December 18.

One difference from previous years is that the Senate will switch to Democratic control in January. We've had ongoing conversations with the current Senate Minority about reforming legislative rules. (And, we hope that the Assembly will consider the same.)

The landmark 2004 Report, The New York State Legislative Process: An Evaluation and Blueprint for Reform, found that the entire legislative process was dysfunctional. In 2005, the legislative leaders, despite disagreeing with the Report's findings, announced several changes to the operating rules intended to make the process more open and robust.

The follow-up in 2006, Unfinished Business: New York State Legislative Reform, found that not much had changed in either chamber.

Our 2008 Report will...you'll have to wait until December 18 to find out. What I can say is that alongside several case studies of legislation, we examine a raft of issues that prevent the Senate and Assembly from acting as an accountable, deliberative, representative and transparent body and propose solutions.