Still Broken: New York State Legislative Reform 2008 Update
"Dysfunctional" is the adjective ascribed to the New York State Legislature by two reports issued by the Brennan Center for Justice: The New York State Legislative Process: An Evaluation and Blueprint for Reform released in 2004 and the follow up, Unfinished Business: New York State Legislative Reform 2006 Update.
The legislative leadership largely dismissed the findings of the 2004 report. Assembly Speaker Sheldon Silver told the New York Times, "Nothing happens here in Albany, in the Assembly, without the input of the rank-and-file legislators." Joe Bruno, who recently left the Senate after serving for 14 years as its Majority Leader, called the report "pure nonsense" and equated a more democratic process with that of a Third World country.
Yet when the Legislature came back into session in early 2005, the Leaders announced rules changes—the first time in a generation—accompanied by self-congratulatory fanfare. In press releases that described the reforms' aspirational effect on the Legislature, the Assembly Speaker and Senate Majority Leader claimed that the new rules would usher in an era of openness, effectiveness, and accountability. The Senate even went so far as to claim that it addressed most of the recommendations made by the Brennan Center.
Unfinished Business: New York State Legislative Reform 2006 Update concluded that the changes on the whole, while a good start, were by no means transformative. The Legislature failed to adopt a comprehensive set of new rules that incorporated the Brennan Center's recommendations for making the legislative process more robust and democratic. Of the changes that the legislature did adopt, some, quite cynically, codified the status quo in new ways. The continued presence of these rules stifles rigorous deliberation and debate and hobbles the sincere efforts of a number of rank-and-file legislators to represent the best interests of their constituents and the state as a whole.
In 2006 and 2007, most standing committees met infrequently or not at all. There were almost no hearings on major legislation. Not a single major bill was the subject of a detailed committee report. Leadership maintained near total control over what bills reached the floor. And on the floor, there was little substantive debate; every bill brought to the floor for a vote in either chamber passed.
The good news is that, for the first time in years, there is reason to hope that at least one chamber will begin to make the structural changes that could remake the legislature. Come January, majority control of the Senate may shift to the Democrats. In 2007, likely incoming Senate President Pro Tempore Malcolm Smith introduced new rules in line with our previous recommendations (the one-house resolution failed along a party-line vote). During a Reform Day New York panel last year, Senator Smith reaffirmed his commitment to introducing the same package of rules reform "without question" if the Democrats regained the majority. He previously stated, "We cannot truly reform the legislative process in Albany until we have successfully reformed the rules that govern the Legislature." More recently, Senator Smith told the New York Times that under his leadership, the Senate "would be more transparent, more participatory." Smith reaffirmed that rules reform under a Democratic majority would include broader latitude for members to put bills on committee agendas or vote them out of committee and onto the floor, abolishment of secretive canvass of agreement votes and restrictions on discharge motions, and the enactment of new rules requiring committee members to be physically present to vote.
At a time when state revenues are shrinking—Governor Paterson forecast a $47 billion budget deficit over the next four years—it has become all the more important for the legislature to be more creative and effective. The rules changes we recommend are a step toward this goal.
At the opening of 2009 session, both houses will once again have the opportunity to modify their rules. We urge the new Senate Majority to honor its commitment to genuine rules reform. The Assembly, which retains a super-majority in favor of the Democrats, should follow suit.
While the world of legislative rules may seem arcane, our capitol's dysfunction has received unprecedented attention over the period covered in this report thanks in part to the failure of New York City's congestion pricing proposal. For far too long, the leadership has failed to enact the changes necessary to remake the Senate and Assembly. Today, pressure to change the culture of Albany may have finally intersected with a new opportunity for reform.
SUMMARY OF FINDINGS AND RECOMMENDATIONS
The quantitative analysis of the Legislature's performance in 2006 and 2007 and qualitative information from interviews with lawmakers reveal that the problems outlined in the original report still plague both chambers. Our analysis of the legislature's performance in 2006 and 2007 shows that the vast majority of problems identified in our previous two reports remain endemic in both chambers:
- In both chambers, but especially in the Assembly, leadership maintained a stranglehold on the flow of legislation at all stages of the legislative process.
- Committee meetings were infrequent in both chambers and sparsely attended in the Senate, where members can vote without being physically present.
- Most standing committees in both chambers failed to hold any hearings on major legislation.
- There were no detailed committee reports attached to major bills in the Senate, and the Assembly rules do not require substantive reports to accompany bills reported out of committee.
- Legislators introduced an extraordinary number of bills in both houses during each session, while only a small percentage received a floor vote.
- 100% of the bills that leadership allowed to reach the floor of either chamber for a vote passed with almost no debate.
- Senate records indicate that many of the bills that received a floor vote lacked critical and required information about their fiscal impact, usually passing the full chamber without any meaningful debate or dissent.
- The use of conference committees to reconcile similar bills in each chamber remained the exceedingly rare exception, rather than the rule.
- Member resources were distributed inequitably in both chambers on the basis of party, loyalty and seniority.
- Much of the legislative process remains opaque; records are difficult to obtain without burdensome "freedom of information" requests, and key records of deliberation—such as "no" votes on procedural motions in the Senate—are not maintained.
It is plain from this and other evidence explored in our latest update that New York's legislative process remains broken. In January 2009, each chamber will again have the opportunity to change their operating rules and begin to fix this process. Such changes will not require agreement between the chambers or gubernatorial approval. At a minimum, they should meet the following five objectives:
- Strengthen standing committees by giving members authority to convene meetings and by requiring committee members to be present to vote.
- End the leadership stranglehold on bills coming to the floor by allowing rank-and-file members to discharge bills from committee and place them on the floor calendar by majority vote.
- Allow adequate opportunity for consideration of legislation by requiring adequate fiscal analysis and allowing ample time for full consideration of each bill on the floor before the close of session.
- Provide sufficient opportunity and resources for full consideration of legislation by making use of robust conference committees and distributing member funds equally.
- Make all records and products of the legislative process fully transparent and easily accessible to the public through the Internet.
To download a PDF of the entire publication, click here.
ABOUT THE AUTHORS
Andrew Stengel is Director of National Election Advocacy for the Brennan Center. He works across the Center's issue areas with an emphasis on New York State reform and voting rights. Previously, Mr. Stengel was Northeast Director for People For the American Way, an aide for intergovernmental affairs to Governor Mario Cuomo, advisor to labor unions and candidates in New York State and the Political and Communications Director for Miramax founder Harvey Weinstein. He is a frequent contributor of op-eds and to the Center's blog, www.ReformNY.blogspot.com. Mr. Stengel is a graduate of Brandeis University.
Lawrence Norden is Counsel in the Brennan Center's Democracy Program. He works in the areas of votingtechnology, voting rights, and government accountability. Mr. Norden was the lead author of the Brennan Center's 2006 report on New York rules reform, Unfinished Business: New York State Legislative Reform 2006 Update, and he edits the Brennan Center's blog about New York reform, www.ReformNY.blogspot.com. In his capacity as director of the Brennan Center's voting technology project, Mr. Norden most recently coauthored Better Ballots, a review of the impact of ballot design on elections, as well as Post-Election Audits: Restoring Trust in Elections, a comprehensive review of post-election audit best practices. Mr. Norden was the lead author of The Machinery of Democracy: Voting System Security, Accessibility, Usability and Cost (Brennan Center 2006), as well as Protecting Elections in an Electronic World (Academy Chicago Publishers 2007). He has also contributed to the Encyclopedia of American Civil Liberties (Routledge 2007).
Laura Seago is a Research Associate in the Brennan Center's Democracy Program, working in the areas of voting rights and government accountability. In this capacity, Ms. Seago co-authored Is America Ready to Vote? State Preparations for Voting Machine Problems in 2008, a review of election system preparedness in all 50 states. Ms. Seago graduated from the University of Chicago with honors in 2007, and spent two years as the Development Director of an immigrant rights agency in Chicago. While conducting research on the governance of international trade, Ms. Seago also worked for the Federación de Cooperativas Agrícolas de Productores de Café de Guatemala (FEDECOCAGUA).