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)