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.

Brennan Center to City Council: Universal Registration Is the Answer

The New York City Council Committee on Governmental Operations held a hearing this morning about three resolutions: early voting, same-day voter registration and electronic voter registration. Chaired by Councilman Simcha Felder, the hearing also served as oversight of the general election (something that’s missing in, say, other areas of the state).

My testimony (pdf here) focused on a solution to several key election administration issues: universal voter registration. As I wrote: “Automatic voter registration is the most comprehensive means available to ensure all who are eligible may vote and to increase participation in the electoral system. In addition, it shifts the burden of registration from citizens and third-party organizations to the government, removes several barriers and smooths election administration.”

In his testimony, state Board of Elections Co-Chair Douglas A. Kellner echoed my sentiment that universal registration is an ideal solution.

For more information, see the Brennan Center’s Universal Registration Policy Summary.

Paterson Confims: Government is Dysfunctional

Governor Paterson confirms what the Brennan Center has been saying for years: "If it looks like dysfunctional government and it acts like dysfunctional government, it probably is dysfunctional government."

Legislature to Jumps on Election Bandwagon

Following a nap worthy of Rip Van Winkle (apologies to past State of the State messages), the state Legislature may be stirring on voting issues in New York. The reason: the reports of the success of early voting around the country, which isn't allowed in New York.

For the sake of this post, set aside that New York still isn't complaint with major parts of the Help America Vote Act (2002!), and that the Board of Elections may miss the court-ordered September 2009 deadline to replace the lever machines.

Word from Albany is that several members of the Legislature will introduce bills for early voting and no-excuse absentee balloting (by constitutional amendment). The first batch are from Assemblymen Jim Brennan and Rory Lancman on those two issues. The rush will start on this Monday, when members of the Assembly can submit bills to be introduced the next legislative session. (The actual date under Assembly rules in November 15, which falls on a Saturday.)

This comes after a much-needed directive by Governor Paterson last week. Secretary of State Lorraine A. Cortés-Vázquezto is conducting "a thorough assessment of the November 4 election..." and will submit a report within 60 days.

Apart from HAVA , new voting technology and making voting easier there are a litany of other election issues in the state that run afoul of democracy and common sense. For one, more than 1.6 million voters--14% of the rolls--were purged before the election. Since the process is opaque, the timing unknown and without oversight it's impossible if people who were eligible to vote on Election Day had their names removed in error. (We do know about the now-famous case of actor Tim Robbins, which may or may not have been a result of a purge.)

According to the Brennan Center report on Voter Purges, procedures to remove names from the rolls are riddled with errors. Plus, the National Voter Registration Act says that systematic purges cannot occur within 90 days of election and that names moved to the inactive list cannot be removed from the rolls before two federal elections .

The delay in party affliction switches, which can be longer than a year, is another area of improvement. In order to vote in our closed primaries, unaffiliated registrants must do so before the general election before the primary they want to vote in. So, unaffiliated voters who wished to vote in the presidential primary in February or state primary in September had to do so by October 12, 2007. Party switches after didn't take effect until the day after the election, November 5.

I've written it before and I'll do so again: Why is a state whose Latin motto is "Excelsior" (or ever upward) seem to be pointed in the opposite direction where elections and democracy is concerned?