Photos from the October 27 Panel at NYU

Last Night's Panel At NYU Law School

We had a great panel on how to reform the State Legislature at NYU Law School last night. With approximately 150 people in attendance, E.J. McMahon (Empire Center), Susan Lerner (Common Cause NY), Senator Squadron and Assemblyman Jeffries each identified the one reform they would most like to see enacted to make significant change in the legislature (there was no dispute that significant change was needed).

E.J. McMahon had what was perhaps the most provocative suggestion: turning the legislature into a "Citizen's Legislature," where the number of legislators was increased, the legislative calendar shortened to 30 days, and the position of Senator and Assemblyman turned into a part-time job. The three other panelists objected to this idea, citing the complexity of issues facing the legislature and arguing it would make the legislature even less effective than it is now.

Susan Lerner argued for reform to the committee process: less committees, more hearings, mark-ups and debate on bills. These are things we see in every other state legislature, and all four panelists agreed this reform was needed in New York.

Senator Squadron argued that we needed real campaign finance reform in New York, with lower contribution limits and public financing. Susan Lerner agreed, stating that campaign finance reform was the reform necessary for all other reforms, and noting that too often legislators feel they must respond to lobbyists first. E.J. McMahon was the only contrarian on campaign finance reform, arguing that if anything, we should further deregulate New York's system (it's hard for me to imagine how it could be much more deregulated).

Assemblyman Hakeem Jeffries argued for an end to the current process for Special Elections, whereby party bosses essentially choose the replacement for legislators who must leave office in the middle of their terms for reasons like criminal indictment. He noted that approximately 1/3 of the legislature has been chosen through this special election process. He and Senator Squadron have introduced a bill to tackle this issue.

We had an extremely engaged audience, with questions about redistricting reform, constitutional convention, elimination of member items and whether it made sense to turn the legislature into a unicameral body.

While there was general agreement that things were pretty bad in Albany right now, the panelists also seemed to agree that the public disgust with Albany presented an opportunity for some significant changes.

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

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

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

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

We hope to see you there!

A Blueprint for Fixing Albany

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

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

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

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

What to Do About Monserrate?

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

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

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

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

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

Lieutenant Governor Ruling a Victory for Paterson and an Argument for Committee Reports

Today, the New York State Court of Appeals ended the final chapter of the Senate coup saga that began nearly four months ago. In an unexpected victory for Governor Paterson, the court ruled that the Governor had the authority to appoint Richard Ravitch as Lieutenant Governor on July 8^th. In arguing that the constitutional provision for the Temporary President to perform the duties of Lieutenant Governor is a “short term” solution that “can at best provide only stop gap coverage,” the decision might also be viewed as a victory for those who found distasteful Pedro Espada’s assertions during the coup that as Temporary President, he was entitled to two votes in the Senate.

In the decision, the court relies on the precedent created by Ward v. Curran, the 1943 case in which the court allowed then-governor Dewey to hold a special election to fill a vacancy in the office of lieutenant governor. Motivated by fears that such special elections might allow for a governor and lieutenant governor of opposite parties, threatening the cohesiveness and efficacy of the executive branch, the legislature later changed the law to require that vacancies in the office of lieutenant governor be filled by gubernatorial appointment rather than special election.

The decision necessarily includes discussion of the legislature’s intent in changing the law, something that the courts usually determine by examining committee reports along with debate and hearing transcripts. Hobbled by New York’s weak legislative process, the court must rely on a gubernatorial address rather than legislative records to provide evidence of intent in this case. The dissent contests the majority’s interpretation of legislative intent, stating – again without the benefit of legislative records – that the legislature did not mean for the offices of lieutenant governor and governor to fall under the rubric of the section of the public officer’s law from which Governor Paterson derived appointment authority. Neither side can point to conclusive evidence.

As the majority writes in today's opinion, "the legislature is always free to revisit" the question of how vacancies in the office of Lieutenant Governor are filled. Just another reason to adopt a robust legislative process designed to explore and document the intent behind the laws that will affect New Yorkers for decades to come.

UPDATED: Words Matter: The Legislature’s Ethics Reform Bill Shows How A Shoddy Process Can Have Unintended Consequences

Yesterday, the Senate failed to pass its version of the ethics reform bill that passed the Assembly earlier this year. While ethics reform is undoubtedly necessary for New York, a longer gestation period for this particular bill may not be such a bad thing.

The legislation is rather massive, and we’ll have more to say about it’s substance in the coming days, but given the ethical shenanigans that seem to have pervaded the legislature over the past year, it’s probably fair to assume that many New Yorkers would view this as an important piece of legislation, deserving of careful consideration by the public and the legislators.

Exactly how much hearing time was specifically devoted to the language in this new bill? Was there a mark-up of the bill in Committee (as is commonplace in other legislatures) where committee members publicly review a bill, line by line, asking questions and offering amendments where appropriate? My guess would be no, since this almost never happens in the New York State Legislature.

Why does this matter? A good hearing or mark-up may have forced members to discuss the following change to existing law in the Assembly version of the bill (we’ll see what the Senate passes), brought to my attention several hours ago by Dennis Hawkins of the Fund for Modern Courts: the bill changes the standard for when a legislator will be subject to penalties for violating the relevant law. Whereas the old law required a finding that the legislator “intentionally” violated the law, the current bill requires that the commission find the legislator “willfully” violated the law.

Why the change? What was the intention? And what is the likely impact? It will be very hard to say, unless there is a detailed committee report that accompanied the bill (there almost certainly wasn’t, as there never is), or unless this came up during a hearing or mark-up specifically devoted to the bill (which there almost certainly wasn’t, since that almost never happens). It’s a safe bet that most legislators don’t even know this change is in here.

In the short time I spent researching this issue, I haven't found any New York case law that explains how "wilful" and "intentional" differ in meaning. It is possible that a court will find they do not differ, though that court will certainly have to confront the fact that this language was explicitly changed. Disturbingly, in other states in other contexts, “willful” has been interpreted to impose a higher threshold than “intentional,”; willfulness has meant not merely committing the act intentionally, but doing so “with legal malice, or without reasonable ground for believing the act to be lawful.” In other words, it is quite possible that the Assembly’s ethics bill -- supposedly meant to strengthen ethics enforcement in the State -- could actually make it more difficult to punish legislators who violate ethics laws intentionally, but not "willfully."

A good legislative process would have forced legislators to publicly grapple with this change and explain it (or, more likely, eliminate it). While the Senate has moved much further than the Assembly in adopting better rules, neither has adopted the kind of committee changes that would have forced them to deal with this potential problem before the bill received a floor vote.

I have notified Senator Squadron's office of the potential issue (Senator Squadron is the Senate sponsor of the bill), and they have stated they will look into it.

Lt. Governor Question Still Merits Court Consideration

Yesterday, an appellate panel ruled that Governor Paterson’s appointment of Richard Ravitch to the office of lieutenant governor violated state law. At the conclusion of the decision, the panel stated that “this matter is one of great public import and ought to be resolved finally and expeditiously by the Court of Appeals.”

In a statement responding to the ruling, Dean Skelos said that if the governor appealed the decision to the court, he would certainly receive the same verdict – a statement that Capitol Confidential interpreted to mean that such an appeal would be futile.

But how should we define futility? Whether or not the Court of Appeals would rule the same way as the panel, a decisive ruling from the court would still have value. As we’ve written before, a ruling on the case would provide valuable precedent in the event that a court is asked to rule on a similar appointment in the future. The panel that ruled yesterday would seem to agree.

For his part, Paterson seems to be confused about the law. A story about the ruling in today’s New York Times reports that Paterson is toying with the idea of having the legislature vote to confirm Ravitch to the post. This brings section 41 of the Public Officers Law, pertaining to vacancies to be filled by the legislature, into the fray. Unfortunately for Paterson, though, section 41 explicitly states that the legislature may only vote to fill a vacancy in the office of comptroller or attorney general.

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

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

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

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

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

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

Reconciling Differences on Mayoral Control

This Thursday, The Senate will reconvene to vote on its version of the New York City school governance (‘mayoral control’) bill. By all accounts, the Senate bill, which was the subject of intensive negotiations within the Democratic conference and between the Senate and Mayor Bloomberg, looks significantly different from the version passed by the Assembly in June.

The Senate version is slated to pass with a chapter amendment that would require the establishment of a parent training center, an arts advisory committee, public meetings on school safety, and quality of curriculum and instruction as a component of the principal review process, none of which are included in the Assembly version.

In most state legislatures, the two chambers would convene an open meeting of a conference committee comprised of members from both chambers to reconcile the differences between the two bills. In New York, differences are usually worked out in closed-door meetings that often cut legislators out of the process. If rank-and-file members want to open the discussion, they’re usually out of luck – the current rules of the New York legislature vest the Assembly Speaker and Senate Majority Leader with sole authority to convene a conference committee.

Assembly Speaker Sheldon Silver has expressed reluctance to use this option, instead stating that he will bring the issue up with his conference when the Assembly reconvenes in September. Last week, Silver said the Senate can probably rely on Mayor Bloomberg’s promises to implement the reforms contained in the amendment regardless of whether they become law, stating that the changes in the chapter amendment "can be done by the City of New York Board of Education without any legislation, anyway."

If the Mayor’s verbal commitment is not sufficient for some in the Senate – and I suspect it won’t be, given how contentious the issue has been – there is little that rank-and-file members can do. But there’s a better way. Both chambers should amend their joint rules to allow bill sponsors or the chairs of the committees of a bill’s original jurisdiction to call a conference committee. Open and robust debate with the aim of crafting the best possible legislation should not end until a bill is signed into law.

Keeping New York from Becoming the Next New Jersey

In light of last week's corruption sweep in New Jersey, it’s worth taking a look at the state of ethics in New York. While it’s tough to top the allegations of kidney trafficking and cash-stuffed cereal boxes involved in the New Jersey case, we certainly have our share of corruption. As we wrote in our 2008 report, four members of the Assembly alone faced corruption charges last year. One the Senate side, former Majority Leader Joe Bruno was indicted in January for accepting over $3 million from entities seeking state contracts, and coup leader Pedro Espada’s attempts to funnel state money to nonprofits that he has a history of illegally using as an extension of his political campaign are now well known.

The state’s ethics infrastructure was overhauled by the less-than-successful Public Employees Ethics Reform Act of 2007 (PEERA). Perhaps most strikingly, the law allowed the legislature to retain oversight authority over itself. The Legislative Ethics Commission, the body that oversees the Senate and the Assembly, is chaired by members of the very bodies that the Commission is intended to regulate. Of the nine members of the Commission, four are legislators and the other five are appointed by legislative leaders (this means that the ethically-challenged Espada now has appointment authority).

Just days before the Senate coup, Governor Paterson and legislative leaders from both chambers met to discuss reforms to the state’s ethics oversight infrastructure, which PEERA failed to improve. The Governor, Senate Democrats, and Assembly Speaker Sheldon Silver each presented different proposals and were unable to come to an agreement before chaos erupted in the capitol on June 8^th.

The proposals range from rolling back very modest steps toward independence made by PEERA to separating legislators from the Legislative Ethics Commission altogether. Silver’s proposal would create two bodies with oversight over the legislature. The first, a Joint Legislative Commission on Ethics Standards, would look very much like the current Legislative Ethics Commission, consisting of four legislators and four non-legislators appointed by legislative leadership. The second, a Legislative Office of Ethics Investigations, would be governed by a board appointed by legislative leaders, none of whom could have been affiliated with the legislature in the two years preceding their appointment. The Senate proposal, sponsored by Senator Daniel Squadron, would merge the Legislative Ethics Commission with the Commission on Public Integrity to create a new body with oversight over both the legislative and executive branches; four of the nine members of the new commission would be appointed by legislative leaders, but no commissioner could be a current or former legislator. The Governor’s proposal is structurally similar to the Senate proposal, but commissioners would be appointed by an independent advisory board (independent appointment of commissioners is something that Paterson has described as a ‘deal breaker’).

While negotiations concerning the reforms were derailed by the coup, ethics reform will likely receive consideration again before the end of the legislative term. It’s worth paying attention to the structures that lawmakers put in place to police themselves and their peers before the cash-stuffed cereal boxes turn up in Albany, too.

This Time, Let the Court Decide

The end of the Senate Coup two weeks ago doesn’t mean that New Yorkers have to go without their daily dose of interesting legal wrangling. Last night, a state Supreme Court Justice granted a preliminary injunction preventing Ravich from acting as Lieutenant Governor.

But that’s not the interesting part. Apparently, Governor Paterson’s argument against the motion for an injunction brought by Senate republicans is that it would upset the balance of powers for the judicial branch to rule in this case.

While we strongly opposed judicial intervention in the coup, we have to disagree with Paterson on this one. As the justice puts it in his ruling:

“A controversy is not justiciable if its resolution would require the court to ‘intrude upon the policy-making and discretionary decisions that are reserved to the legislative and executive branches’ […] a court may determine whether the state constitution or the legislature has empowered the governor to act.”

In this case, the court is being asked to interpret the provisions in the constitution and the Public Officers Law that Paterson argues grant him the authority to appoint Ravich, not to intervene in the legislature’s internal politics. Paterson’s argument is particularly baffling given that a central part of his defense of the appointment is a 1943 court case in which the judicial branch was asked to rule on the constitutional authority of the executive branch to fill the office of lieutenant governor. The case provides an interesting precedent and a victory for Paterson will likely require the courts to rule that it still applies today.

While the law has changed slightly since that case, the definition of justiciability has not. And although the coup is over and the impact of a Lieutenant Governor may now be inconsequential, we could stand to have some clarity on the Governor’s ability to appoint the Senate’s presiding officer – after all, a return to deadlock, as Liz Benjamin so aptly put it yesterday, is “just a hissy fit away.”

Measuring the new Senate Rules against the Assembly

The Assembly may come to miss the sideshow in the state’s upper chamber. With the passage of the Senate’s new rules on Thursday, the Assembly now lags far behind in enacting reforms. Here’s a brief rundown of some of the reforms passed by the Senate last week and how they compare to the current Assembly rules.

Impose 8-year term limits on the offices of majority leader, minority leader, temporary president, committee chairs, and ranking members.

BEHIND THE SENATE: Nothing in Assembly rules limits the terms of any leaders.

Allow a bill sponsor to force a committee to vote on her bill within 45 days

BEHIND THE SENATE: Assembly bill sponsors may file a request for committee consideration on a bill, but the committee is not required to act on the request until the end of the second year of the term. (Rule IV § 5 (b))

Allow 1/3 of the members of a committee to petition for hearings on specific legislation (unless majority of members reject the petition.)

ON PAR WITH THE SENATE: In the Assembly, a majority of committee members can petition for a hearing. (Rule IV § 4 (a))

Require the Finance committee and other relevant committees to produce a plan for public hearings regarding impact of state budget

AHEAD OF THE SENATE: The Assembly rules require chairs of each committee to call at least one public hearing regarding the implementation of the state budget. (Rule IV § 4 (b))

Require committees to file annual reports detailing legislative and oversight activities.

ON PAR WITH THE SENATE: The Assembly has a rule requiring annual committee reports detailing activities and legislative proposals. (Rule IV § 9)

Allow members to move bills to the active list over the wishes of the majority leader – bills must receive a vote within four legislative days after a successful motion

BEHIND THE SENATE: The Committee on Rules, which is controlled by the Speaker of the Assembly, determines the order of the calendar. There is no mechanism to allow rank-and-file members to force a bill onto the floor for a vote. (Rule IV § 10(b)(1))

All senators get same base allocation for office staffing and equitable access to common resources

ON PAR WITH THE SENATE: Assembly rules require that members get equal allocations of specific resources, like printing and stationary, and that they should get an equal allocation of base staff funding (Rule V, § 9). It is worth noting, however, that despite the existence of this rule, minority members had budgets that were 33% smaller on average than their counterparts in the majority for the period from October 2007 to March 2008.

Require that all committee records, agendas, votes, minutes, reports, attendance, fiscal notes, active lists, floor votes, floor transcripts, calendars, the payroll report, and expenditure report be made available to the public in a searchable database.

BEHIND THE SENATE: The Assembly rules reaffirm that the chamber will comply with the freedom of information law, but they make no attempt to go further to make legislative records accessible to the public. (Rule VIII)

Strange as it may sound in light of the events of the past six weeks, the Assembly could stand to take a cue from Senate, especially where empowering rank-and-file members (by allowing them to force committee review and floor votes on their bills) is concerned. And if they ever do get around to improving their rules, why not up the ante and establish a committee mark-up procedure and requirements for committee reports?

One Big Step Forward for the Senate; One Big Step Left to Go

Early this morning, the Senate passed a resolution to substantially alter the operating rules of the chamber. The Senate has gone a long way – certainly farther than the Assembly – to reform their leadership-controlled legislative process.

The new rules uphold most of the good changes made by the GOP-Espada coalition on June 8^th, including distributing member resources more equitably, allowing members to move legislation to the floor over the wishes of the majority leader, and imposing term limits on chamber leadership. But they also enacted a suite of new reforms that take important steps to empower rank and file members and increase chamber transparency.

Some of the most important new reforms are:

• Allowing 1/3 of the membership of a committee to petition to hold hearings on specific bills (subject to the approval of a majority of the committee)
• Replacing discharge motions with a motion for committee consideration, under which a sponsor can force a committee to vote on her bill (the new motion doesn’t require a majority vote of the chamber or the committee)
• Allowing committee chairs to hire their own staff - although the rules only force leadership to allocate funding for one staffer per committee.
• Requiring the Senate to make committee records, agendas, votes, minutes, reports, attendance, fiscal notes, active lists, floor votes, floor transcripts, calendars, the payroll report, and expenditure reports available on a searchable public database.

On the whole, the new rules are a significant improvement over what was passed last January. But like the June 8^th rules resolution, this one falls short on reforming the committee process. There is still no process for reading bills in committee or even for requiring committee members to show up to meetings. Committee reports can still be perfunctory and lack any description committees’ work on bills (in addition to making it more difficult for other legislative members and members of the public really understand these bills, a lack of real committee reports -- unique to New York -- makes it exceptionally difficult for the courts to determine legislative intent in difficult cases). And while the new rules allow members to petition for hearings, it does nothing to require hearings on major legislation. All of this means that the only substantive debate on legislation that occurs will probably continue to take place in closed-door party conferences.

But there is some hope. In a statement released last night before the rules vote, chamber leaders said that the Temporary Committee on Rules and Administration Reform will report back in December about committee reform, when they are expected to recommend reducing the number of committee assignments for each member. With extra time on their hands, committee members should be required to do the deliberative work that occurs in nearly every other legislature in the country. Specifically, the Senate should:

• Create a formal process for reading bills for amendments (otherwise known as a "mark-up") and public debate in committee;
• Make more rigorous requirements for committee reports showing the work of the committee on each piece of legislation;
• Allow committee chairs to hire more than one staff person where necessary; and
• Set requirements for committee hearings on major legislation

If they do this, they will finally earn the Brennan Center’s full-throated praise.

Three Reforms for the Post-Coup Senate

This week, the Senate is likely to vote on a new rules resolution that will determine how the post-coup chamber will run. While Republicans have already accused Democrats of reneging on reform, it seems likely that the key changes enacted by the June 8^th rules resolution – including more equitable distribution of resources and a procedure for moving bills to the floor over the wishes of the majority leader – will hold. But both caucuses have been silent on committees, which did not receive much attention during the month-long stalemate, or, for that matter, in the decades leading up to it.

The Senate's failure to address committees is particularly egregious given that a strong committee system could be the best counterbalance to Espada’s power as Majority Leader. If the Senate is to limit the extent to which one or two leaders can control the entire legislative agenda, it will create a deliberative committee process through the following three reforms:

1. Require committees to hold hearings on all bills unless the committee votes to dispense with a hearing;
2. Require committees to read all bills for amendments unless the committee votes to proceed directly for a vote; and
3. Improve the rule requiring committees to produce reports on all bills to include a summary of majority and minority opinions, records of all amendments and comments made by committee members, transcripts of hearings on the bill, and voting records.

If these sound like relatively basic requests, it’s because they are. But they’ll go a long way toward making committees – rather than the whims of chamber leadership – the driving force behind policymaking in New York.

To read the Brennan Center’s complete recommendations for rules reform, including proposed language for incorporating these reforms into the Senate’s operating rules, click here.

Back to Square One?

With Pedro Espada's apparent return to the Democratic conference, everyone is now wondering just how far the Democrats will turn back the clock on the rules changes made on June 8th. By one account, it does not look good. In an interview with Jimmy Vielkind today, Senator Eric Schneiderman said that the rules passed in January still apply.

On the other hand, there is at least a sliver of hope that once the Democrats regain control, they will actually make some long promised changes (which did not occur during their first six months in power). Senator Daniel Squadron has pledged to fight for reform under the renewed Democratic Majority. It is certainly now in the Republicans' best interest to back reforms, and as we've written before, it doesn't take much of a groundswell to form a majority in such a narrowly divided chamber.

But the Senate must do more than uphold the rules passed on June 8th that made it easier to move bills to the floor over the wishes of the majority leader and divided resources more evenly amongst members. The Senate will never be a functional legislative chamber until it reforms its broken committee system to make committees the engine of the legislative process. They must develop a process for reading, debating, and amending bills in committees before the legislation receives a vote, and if all of the legal ambiguities brought to light over the past month has taught us anything, it is that committees must produce substantive reports showing their intent in revising and passing the legislation under their consideration. The rest of the Democratic caucus would do well to not only follow Senator Squadron's lead in pledging to fight for rules reform, but also to look to his committee markup procedure as a model for the road ahead.

The Senate Democrats have been given the rare gift of a second chance. If they turn back the clock on rules and go back to business as usual, they will blow it in record time.

The Role of the Courts in Ending the Gridlock in Albany

Larry Norden is quoted in Crain's New York Business this morning saying that with no clear legal precedent, it's difficult to say how the courts would rule on the Governor's appointment of a Lieutenant Governor. But is worth it to have them hear the case that the Republican caucus has already brought - the courts can clarify once and for all the Governor's power in this area. They may find that he has the legitimate authority give the Senate a presiding officer to shepherd the chamber through its extraordinary session gridlock. We have opposed other attempts to bring the courts into the Senate's leadership fight, but this is an appropriate time for the judicial branch to step in and interpret the law.

Queens Democratic Assemblyman Rory Lancman has a slightly different take on the role of the courts. In an op-ed in Newsday, he argues that by refusing to weigh in on the leadership dispute to date, the courts have been abdicating their responsibility. While have not favored judicial intervention prior to the Governor's announcement that he is appointing a lieutenant governor, Lancman's op-ed is worth a read for another point of view.

When the Law is Ambiguous: Governor Paterson's Power to Appoint a Lieutenant Governor

In a press conference this morning, Assemblyman Michael Gianaris outlined the legal argument, originally proposed by our former colleague Jeremy Creelan, in support of Governor Paterson’s power to appoint a lieutenant governor to preside over the Senate.

It’s an interesting proposal. Because the senate rules state that the lieutenant governor is the president of the senate, this solution would provide the chamber with a presiding officer without requiring the membership to agree on whom rightfully holds the title of majority leader. The lieutenant governor wouldn’t count toward a quorum for the purposes of convening a regular session, but in the daily extraordinary sessions which a judge has ordered the full Senate to attend, a lieutenant governor could help end the stalemate and facilitate the passage of critical legislation. With a majority of Senators necessary to conduct regular Senate business, this solution wouldn’t affect in the ongoing fight to control the chamber in 2010, and the Senate’s warring factions would be free to take as long as they need to reach an agreement about the chamber’s leadership.

But while we’ve been quoted as saying that Gianaris’ proposal is a viable solution to the gridlock in Albany (our full statement says that the Governor may have the power to appoint a lieutenant governor), there are potentially legitimate arguments on both sides.

On the one hand, New York state law would seem to give Paterson the authority to appoint someone to the office. Section 43 of the Public Officers Law says, in relevant part:

“If a vacancy shall occur, otherwise than by expiration of term, with no provision of law for filling the same, if the office be elective, the governor shall appoint a person to execute the duties thereof until the vacancy shall be filled by an election.”

On the other hand, the 1943 state Supreme Court case cited in Gianaris’ letter to Paterson was decided based on the 1938 constitution, which diverges from today’s constitution in several important ways. The decision focuses on whether a clause of the former constitution stating that the president pro-tempore of the Senate shall preside over the chamber in the absence of a lieutenant governor constitutes a provision for filling a vacancy in the office of lieutenant governor. While the court ruled that this provision did not mean that the senate president assumed the office of lieutenant governor, it based its decision on the fact that presiding over the Senate is just one of the responsibilities of the office of lieutenant governor. The constitution used today reads a little differently with respect to succession to the office of lieutenant governor:

“In case of vacancy in the office of lieutenant-governor alone, or if the lieutenant-governor shall be impeached, absent from the state or otherwise unable to discharge the duties of office, the temporary president of the senate shall perform all the duties of lieutenant- governor during such vacancy or inability.” [emphasis added]

We don’t have a conclusive answer as to whether this constitutes a provision of law for filling the office of lieutenant governor (as opposed to a provision for someone to assume the responsibilities, but not the title of the office) but it’s certainly not a slam-dunk for Gianaris’ side.

In the end, the question for the courts would be, once the temporary president assumes all the duties of lieutenant governor, has the vacancy in the lieutenant governor's office been filled? If it has not, as Jeremy Creelan argued in the Daily News, then the Governor might have the power to appoint his own choice to temporarily fill the vacancy, pursuant to Section 43 of the Public Officers Law. Creelan has also pointed out that, in contrast to other offices, the drafters of both the constitution and the Public Officers Law never explicitly exempted the lieutenant governor's office from those that could be filled by the governor.

Despite the potential problems with Gianaris’ proposal, it merits serious consideration. The mere possibility of ending the current gridlock that is holding critical legislation hostage might be reason enough to take Gianaris’ theory for a spin. The courts exist to help navigate exactly this type of legal grey area, and it seems like there would be a real value to allowing them to weigh the merits of the arguments made today.

Brennan Center Statement on Gianaris Proposal for Appointing a Lieutenant Governor

Today Assemblyman Michael Gianaris (D-Queens) outlined the legal argument supporting Governor Paterson's power to appoint a Lieutenant Governor to preside over the Senate chamber.

Such an appointment would provide the Senate with the leadership necessary to pass critical legislation during extraordinary session without intervening in the ongoing fight for control of the Majority Leader and President Pro Tempore positions or affect the leadership of the Senate in 2010.

"This proposal seems to provide a viable roadmap for ending the current gridlock in Albany," says Lawrence Norden, senior counsel at the Brennan Center for Justice. "The law suggests that the Governor may have the ability to facilitate the passage of necessary legislation while staying well within the powers of the executive branch."

"A Lieutenant Governor would not affect the number of Senators necessary to call the Senate into regular session," continued Norden. "However, all members are under a court order to appear for extraordinary session. This means there will be a quorum for all extraordinary sessions, and the new Lieutenant Governor could act as presiding officer of the chamber to ensure that legislation on the calendar for such sessions received a legitimate vote."

A Way Out of the Senate Logjam NOW

The mess in the State Senate is starting to have serious consequences. After a three-week deadlock over control of that body, the Senate today watched a number of deadlines pass. Several jurisdictions had hoped to extend or increase certain taxes to fill budget holes, and there is confusion over who controls New York City schools. Meanwhile, a bill to increase jobless benefits cannot be passed, power rates for many local businesses are likely to spike because subsidies have expired, and several local jurisdictions are warning that they may have to raise property taxes and fire local employees, including police.

Various members have noted that they are "embarrassed" and "frustrated" by what's happened. There is a simple solution to getting us out of this morass, and Senator Frank Padavan may have inadvertently provided it when he walked into the Senate chamber yesterday looking for a cup of coffee. Democrats claimed they had a momentary quorum, and that all subsequent matters voted on should count.

While nobody seems to be buying this claim, it raises an obvious question: why doesn't one member, working with the Governor, break this logjam -- at least for non-controversial items that will allow local jurisdictions to balance their budgets.

After all, every session for the remainder of the month will be an extraordinary session. The Governor sets the agenda, and article IV of the state constitution dictates that Senate can only vote on those items he gives them permission to address. A member of either party, Democrat or Republican, can simply wander over to the other side and LET them have a quorum for the day. Important legislation that everyone agrees needs to be passed can be passed.

In this scenario, the Senate can keep fighting over who gets to call himself Majority Leader until next year -- but important legislation, thousands of jobs and the economy of the State would no longer be held hostage by the bickering factions.

Of course, this would mean earning the wrath of one party leader or another -- but all for the good of the people of New York, something that frustrated voters would certainly understand. Can we have a volunteer?

(Drafted with Eric Lane)