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.