January 4, 2005
Albany Reform: Start By Changing the Rules
By Jeremy Creelan
When the State Legislature convenes for a new session this month, it is likely to face the task of determining how much money will be spent on public schools across the state, how to reform the states lobbying laws, whether to regulate more closely the plethora of public authorities, and many other legislative issues of concern to New Yorkers.
But in order to tackle these issues properly, lawmakers in Albany will also have to consider changing the way they do business to make the legislative process more effective, more transparent, and more democratic. As New Yorkers, it is our task to ensure that our representatives make a New Years resolution to enact meaningful improvements in the legislative rules.
Specifically, each chamber - the Senate and the Assembly - will vote separately to adopt new rules that govern issues such as how committees function or how legislators vote.
Good government groups have long been interested in these issues. But until recently the Brennan Center, and other groups like us, have focused primarily on reforms that were less attainable than rules reforms: constitutional changes, redistricting, and campaign financing, to name a few.
While critically important, those reforms require legislation to be passed (and, in the case of constitutional changes, repeated legislative action). By contrast, rules changes require less sweeping action. In the immediate future, therefore, rules reform is our best hope for substantive changes in the legislative process.
Rules reform has long been seen as a “good government” issue only of interest to those few advocates concerned with questions of process, rather than with bread-and-butter issues like education or jobs. But, as the last few months have demonstrated, voters do in fact care about how and whether their government works.
EVALUATION OF ALBANY: WHICH AREAS NEED REFORM?
The Brennan Center chose to focus on the legislative process in Albany as the result of a rare pattern we noticed in our own work. In discussions with people and organizations across New York State - regardless of which area they were working in or what their ideological bent was - virtually everyone agreed that the current legislative process was standing in the way of real progress in pursuing their own policy agendas whatever they might be.
So we set out on an 18-month research project to understand precisely what, if anything, was “dysfunctional” about New Yorks legislative process and to develop recommendations for reform. We interviewed sitting members of the legislature and scores of staffers; we reviewed the transcripts of floor debates, the committee reports, and the committee votes; and we investigated the history of the legislative process over the last century. We also looked at the rules in New York and in every state across the nation, in each chamber, and interviewed people in each state about certain aspects of each states legislative process. The result was a report entitled “The New York State Legislative Process: An Evaluation and Blueprint for Reform.” That report identified rules changes that together would make the New York State Legislature more representative, more deliberative, more accessible and accountable to the public, and more efficient.
Specifically, our research allowed us to identify at least four major areas in need of reform:
In most legislatures, of course, committees are where the action is. It is in committees where momentum develops for a bill, and this momentum - and not just the will of the powers that be - decide whether a piece of legislation will make it to the floor: Has enough momentum developed through public hearings, though press attention for a bill etc., for it to go to the floor? Or is the issue not ripe yet?
These sorts of questions do not often arise in New York, because committees rarely perform that function. There is a remarkable lack of sustained discussion on bills in committee in New Yorks State Legislature, particularly in the Senate. True, there are public hearings on major issues - though even these are more rare than they should be. But on specific bills there are virtually never hearings - they were held for only 0.5 percent of major bills passed by the Assembly and 0.7 percent of those passed by the Senate from 1997 through 2001. There is little focus on parsing language and on determining from testimony and research as a committee what is the best solution to a problem.
Committees in New York do not produce reports on each piece of legislation. This not only hinders consideration of a bill when and if it reaches the floor; it also robs state courts of invaluable legislative history to interpret laws that are passed.
In the Senate, committee members can (and do) cast their votes on bills by proxy given to the committee chair, i.e., they can indicate how they wish to vote, but are often not even in the room to debate the bill or cast their vote.
In short, committees do not provide the incubation for a bill, opportunities for public and member input into a bill, or the public momentum for a bill that they should.
The sheer number of committee assignments may explain part of this failure: in New York, the number of committees to which each member is assigned dwarfs those of any other state. The average in the Senate is eight committees per member; in the Assembly it is three to four per member. There is simply no way for legislators to perform the work they should if they are required to serve on so many committees.
Getting a Bill Out of Committee to the Floor
Even when a bill has the support of a majority of legislators within a chamber, New Yorks legislature makes it more difficult than any other legislature in the country to discharge a bill from a committee for the full chamber to consider. Discharge motions are intended to allow supporters of a bill to obtain consideration by the full chamber despite the opposition or inaction of the committee to which the bill was referred or the chair of that committee. New Yorks legislature places more restrictions than any other state legislature on motions to discharge a bill from a committee to the floor for a vote.
In addition, New York allows the majority leader and speaker, directly or indirectly, complete control over the legislative calendars to determine whether and when a bill that has been reported out of a committee will be considered by the full Senate or Assembly. The New York Senate and Assembly are two of only three chambers nationwide (out of 99) in which the leader of the chamber determines the order of bills placed on the second reading and special orders calendars; they are also two of only five chambers in which the leader determines the order of bills placed on the third reading calendar.
What are the results of this control? From 1997 through 2001, the Senate voted on 7,109 bills and, from 1997 through 1999, the Assembly voted on 4,365 bills. Not a single bill that reached the floor for a vote was rejected in either chamber. When a bill is brought up for a vote, there is no suspense. Many bills that should be debated and considered do not make it anywhere near the floor.
In both chambers of the state legislature a members vote is automatically counted as a “yes” vote the minute he or she checks in that morning. Members do not have to be in their seats to vote in the affirmative on any bill.
This may not be as great a substantive problem as some of the others mentioned here. But it profoundly undermines the publics confidence in the process.
So-called absentee voting is rare across the country; it offends a citizens sense of what a legislator should be doing. People can differ as to its real substantive import, but it certainly offends many citizens. It should be addressed for that reason alone.
We also think it appropriate to focus on the “message of necessity.” This device allows the legislative leaders to circumvent the constitutionally required three-day waiting period before a bill can be voted on. The constitutional intent was to use this tool only in cases of true emergency for swift action. But we found that over a quarter of major pieces of legislation are passed with messages of necessity on average each year. If you cannot wait three days to pass a bill, there should be a compelling justification for it. Besides the obvious need for substantive review by members, a bill needs to be checked for typographical errors that can make a big difference once a bill becomes law. Messages of necessity should be reserved for emergencies.
Conference committees are widely used in the U.S. Congress and in other state legislatures to reconcile differences between the bills passed by the two houses of a legislature to produce a single law that can be passed by both. In New York, however, conference committees have been used only rarely since the first decades of the 20th century. Instead, to pass a bill into law, one chamber must move to substitute the other chambers version of the bill for its own, with the leaders of the two chambers working out any differences directly.
As a result, New York does not have any established mechanism to prevent legislative gridlock if the speaker and majority leader cannot resolve their differences directly in closed-door negotiations. The result, in too many cases, is a failure to pass even legislation that has garnered overwhelming support among legislators and the public. In addition, New York does not obtain the benefits of a conference committees review and airing for public scrutiny of the final version of a bill before it is voted into law.
AN OPPORTUNITY FOR CHANGE
The dysfunction in Albany has caused New Yorkers from all over the state, from all lines of work, and from different ideological perspectives, to come together in agreement. It is very rare to reach such a consensus on a problem, and it has allowed people across the state to reach a growing consensus on the solution.
We have tried to form a broad-based coalition of groups, spanning from business groups to environmentalists, and including all the other groups and communities that focus on work in Albany. Many do not necessarily have the resources to focus on process issues, but all are very much affected by them. Given the opportunity, they have agreed to mobilize to advocate for rules reform.
When groups from such different perspectives agree on an issue in such great detail, it makes for a momentous opportunity in New Yorks history to reform our government. We have to take advantage of this momentum to give New Yorkers the legislature they deserve.
ABOUT THE AUTHOR
Jeremy Creelan is the deputy director of the Democracy Program at the Brennan Center for Justice.