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Testimony of Lawrence Norden Regarding New York State Senate Rules Reform

Testimony before the New York State Senate Temporary Committee on Rules Reform on the findings of the Brennan Center’s 2004, 2006, and 2008 reports on the New York State Legislature and the Center’s recommendations for reform

Published: February 26, 2009

Click here to down­load a PDF of this testi­mony

 

Tempor­ary Commit­tee on Rules Reform
New York State Senate

State­ment of
Lawrence D. Norden
Senior Coun­sel, Bren­nan Center for Justice at NYU School of Law

Febru­ary 26, 2009

 

The Bren­nan Center for Justice thanks the Tempor­ary Commit­tee on Rules Reform for hold­ing this hear­ing.    The Bren­nan Center for Justice is a nonpar­tisan think tank and advocacy organ­iz­a­tion that focuses on demo­cracy and justice.  In the area of demo­cracy we are commit­ted to goals that support a govern­ment which is more repres­ent­at­ive, delib­er­at­ive, account­able and access­ible to the public.

In 2004, the Bren­nan Center released a report[1] (the “2004 Report”) that detailed the pervas­ive defi­cien­cies in New York’s legis­lat­ive process and offered a blue­print for reform.  In 2006 and 2008, we followed up with addi­tional reports[2] that found, despite claims of reform from Senate and Assembly Lead­er­ship, the funda­mental barri­ers to a func­tional and effect­ive legis­lature remained firmly in place.

The rules changes announced in the Senate last month repres­ent an import­ant first step towards the creation of a more trans­par­ent and account­able legis­lat­ive cham­ber.  We believe that if the oper­a­tions of the Senate are to be substan­tially reformed, further rules changes are needed.  We look forward to work­ing with you to make these changes happen.  

In our most recent report, the Bren­nan Center has laid out a list of rules changes we would like to see in the Senate.[3]  As in our previ­ous reports, these recom­mend­a­tions fall into six main categor­ies:

  • Strength­en­ing Stand­ing Commit­tees, by allow­ing them greater inde­pend­ence and encour­aging mean­ing­ful parti­cip­a­tion by rank-and-file members and bill spon­sors;
  • Remov­ing Barri­ers to Full Consid­er­a­tion of Bills,  by allow­ing indi­vidual members, and not just lead­er­ship, to move bills to the floor for debate and vote;
  • Allow­ing Ample Oppor­tun­ity for Adequate Review, Debate and Amend­ments of Legis­la­tion by Indi­vidual Members, by, for example, revis­ing legis­lat­ive dead­lines and the session calen­dar of all bills and requir­ing that all bills with fiscal impact are accom­pan­ied by thor­ough fiscal notes provided to members prior to the bill’s consid­er­a­tion in commit­tee or on the floor;
  • Provid­ing All Members with Suffi­cient Resources, more equit­ably distrib­uted in accord­ance with an object­ive stand­ard;
  • Insti­tu­tion­al­iz­ing Confer­ence Commit­tees, so that when bills address­ing the same subject have been passed by both cham­bers, the prime spon­sors from each cham­ber or the Speaker and Major­ity Leader can convene them; and
  • Making the legis­lat­ive process more trans­par­ent by making commit­tee meet­ing minutes, fiscal notes, voting records, debate tran­scripts, and other products of the legis­lat­ive process avail­able on the inter­net within a reas­on­able period of time after their creation.

I will use this testi­mony to focus on three of these recom­mend­a­tions: strength­en­ing stand­ing commit­tees; remov­ing barri­ers to full consid­er­a­tion of bills; and insti­tu­tion­al­iz­ing confer­ence commit­tees.

 

A.        Strength­en­ing Stand­ing Commit­tees

In the 2004 Report, we noted that the State Legis­lature’s commit­tees were weak and inef­fect­ive, fail­ing to serve two core legis­lat­ive func­tions:

… first, to enable legis­lat­ors to develop, exam­ine, soli­cit public and expert feed back upon, and improve bills in a specific area of expert­ise and to convey the results of their work to the full cham­ber; and second, to over­see certain admin­is­trat­ive agen­­cies to ensure that they fulfill their stat­utory mandates.[4]

Instead of anchor­ing the legis­lat­ive process, we found that the com­mit­tee system in New York “rarely include[d] signi­fic­ant delib­er­a­tion, policy devel­op­ment, draft­ing, or amend­ments to legis­la­tion, even for major bills that become law.”[5] These fail­ures contras­ted starkly with the way commit­tees func­­tioned in Congress and most other state legis­latures, where commit­tees are “the locus of most legis­lat­ive activ­ity.”[6]

New York’s weak commit­tee system led to weak legis­la­tion: more often than not, legis­la­tion did not reflect the collab­or­at­ive engage­ment of experts, input from public hear­ings and reports, or discus­sion, delib­er­a­tion, and debate among members of the public and the Legis­lature.

There were many reas­ons for the weak commit­tee system. Among the most impor­tant reas­ons iden­ti­fied in the 2004 report were the follow­ing:

  • The Speaker and Major­ity Leader exer­cised almost complete control over commit­tee staff­ing, which deprived commit­tees of the abil­ity to prior­it­ize, consider, and develop legis­la­tion inde­pend­ent of lead­er­ship.[7]
  • It was far too diffi­cult for rank-and-file members to compel a stand­ing com­mit­tee to hold public hear­ings on pending legis­la­tion or to over­see admin­is­trat­ive agen­cies within the commit­tee’s juris­dic­tion. As we noted in 2004, that diffi­culty “under­mines the effect­ive­ness of the commit­tees and the Legis­lature as a whole. The public is deprived of an import­ant oppor­tun­ity to have input into the formu­la­tion of policy legis­la­tion by their repres­enta­t­ives. The Legis­lature is robbed of the bene­fit of hear­ing expert testi­mony and critiques of a proposed legis­lat­ive approach…The legis­lat­ors are deprived of a forum to educate them­selves and to debate and mark up proposed legis­la­tion.”[8]
  • Commit­tees were not required to draft (and rarely did draft) commit­tee reports that set forth the purposes of a bill, the proposed changes to exist­ing law, section-by-section explan­a­tion, cost-bene­fit analysis, proced­ural and vot­ing history, or any indi­vidual members’ comments on the bill. Instead, com­mit­tees issued only Spon­sors’ Memor­anda or Commit­tee Bill Memor­anda, which either ignored these topics alto­gether or addressed them in a super­fi­­cial fash­ion. More mean­ing­ful commit­tee reports, we noted, would allow the full cham­ber, the courts, and the public to gain a greater under­stand­ing of a bill’s poten­tial impact, and they would “encour­age [], if not guar­an­tee [], that the commit­tee in ques­tion [would] in fact analyze, debate, and fully consider a bill.”[9]
  • Because legis­lat­ors in both houses were assigned to so many commit­tees – in the Senate, the aver­age number of assign­ments was 8, more than in any leg­is­lat­ive cham­ber in the coun­try[10] – it became far less likely that they would attend most commit­tee meet­ings and hear­ings, develop expert­ise through commit­tee work, or other­wise devote them­selves to the time-consum­ing work neces­sary to  consider and shape effect­ive legis­la­tion.
  • New York made it more diffi­cult than any other legis­lature in the coun­try for a rank-and-file member to obtain consid­er­a­tion of a bill by either her com­mit­tee or the full cham­ber.[11]

In the years since the release of the 2004 report, the Senate has not taken the steps neces­sary to create an even moder­ately inde­pend­ent, delib­er­a­t­ive commit­tee process that could act as an incub­ator for policy – the kind of sys­tem used by Congress and so many other state legis­latures.

Further­more, because it remains nearly impossible for commit­tee members to force their chair to hold a hear­ing or vote on specific legis­la­tion, New York’s commit­tee system does not provide a forum for members to debate and delib­er­ate to ensure that favor­ably repor­ted bills embody the best policy solu­tions to meet the public’s interest. These concerns are borne out by the fact that in the last several years, almost no com­mit­tee hear­ings were held specific­ally to review major legis­la­tion that was even­tu­ally enacted into law, and nearly all commit­tee votes were unan­im­ous.58

Moreover, the Senate Major­ity Leader still controls nearly all commit­tee resources and contin­ues to have the power to hire – and fire – all commit­tee staff.[12] This means that the most signi­fic­ant policy devel­op­ment and legis­lat­ive draft­ing are the respons­ib­il­ity not of commit­tee members but of Cent­ral Staffers who are ulti­mately account­able to the legis­lat­ive lead­ers.[13]

Finally, while the Senate rules passed in 2005 limited the number of commit­tees on which a Senator could sit to seven, that threshold is still far higher than assign­ment limits in most states, and members are still too over­burdened to parti­cip­ate effect­ively in com­mit­tee delib­er­a­tions.

Taken together with the absence of substant­ive commit­tee reports, limits on forc­ing hear­ings or votes, low attend­ance rates at commit­tee meet­ings, and the con­tin­ued use of absentee voting in the Senate commit­tees, these stat­ist­ics paint a picture of a commit­tee system that is barely func­tional – and very far removed from the public interest.

If the Senate is to create a strong commit­tee system, it must make at least five changes to its legis­lat­ive oper­at­ing rules relat­ing to commit­tees:

  • A minor­ity of commit­tee members must be able to force a public hear­ing on a bill unless a major­ity of the commit­tee publicly votes to reject the request;
  • One-fourth or more of a commit­tee’s members must be able to force a time­ly and public commit­tee vote on a partic­u­lar bill, even if the commit­tee chair-person objects;
  • Each commit­tee should have the power to hire and fire profes­sional commit­tee staff, inde­pend­ent of the pref­er­ences of the Major­ity Leader;
  • All commit­tees should be required to draft commit­tee reports that set forth the purpose of any bill voted out of commit­tee, as well as the proposed changes to exist­ing law provided in the bill, a section-by-section explan­a­tion of the bill, a cost-bene­fit-analysis, the bill’s proced­ural and voting history, and any indi­vidual members’ comments on the bill; and
  • Commit­tee members must be phys­ic­ally present to cast votes on legis­la­tion before the commit­tee.

 

B.        Remov­ing Barri­ers to Full Consid­er­a­tion of Bills

As noted in the 2004 Report, the barri­ers to moving a bill from commit­tee to consid­er­a­tion before the full cham­ber are greater in New York than in any other state.[14]  Even when the vast major­ity of Senat­ors have claimed to support a partic­u­lar bill, the Senate Major­ity Leader has been able to prevent it from coming to the floor for debate and a vote.[15]  The result is that all too often, the New York legis­lature avoids issues that are diffi­cult or contro­ver­sial even when a major­ity of New York­ers believe they should be addressed.

In our previ­ous reports, we have noted that there are several ways in which Senate lead­er­ship has preven­ted popu­lar or import­ant bills from getting to the floor for debate and a vote:

  • First, the Senate placed “more restric­tions than any other state legis­la­ture on motions to discharge a bill from a commit­tee to the floor for a vote.”[16] Until recently, members could only discharge a bill from commit­tee within the often narrow window between the 30th day after a commit­tee has received a bill and the second Tues­day in April, and only then under the condi­tions that there is no more than one other discharge motion already on the calen­dar and the bill spon­sor has given her consent. The Janu­ary 2009 reforms only partially alle­vi­ated these restric­tions.
  • Second, Senate lead­ers had full control over the order of bills placed on the cal­endars – and full discre­tion over whether to place a bill on the calen­dar at all. As of 2004, the New York Senate and Assembly were two of only three cham­bers nation­wide to grant lead­ers this power for the second-read­ing and special-order calen­dars, and two of only five cham­bers to grant lead­ers this power for the third-read­ing calen­dar (on which final votes on passage are taken).[17]
  • Third, lead­er­ship has used the Rules Commit­tee as a bottle­neck to the progress of bills.  The Rules Commit­tee has the author­ity to refer bills to itself from any other stand­ing commit­tee, so long as it deems such refer­ral “in the public interest.”  Members cannot bring discharge motions before the commit­tee, and unlike all other commit­tees, the Rules Commit­tee is exemp­ted from the require­ment that it provide notice of its meet­ings and copies of its agen­das in advance.

In announ­cing rules changes this year, the Senate took some import­ant steps in remov­ing barri­ers to success­ful motions to discharge, includ­ing ending unre­cor­ded “canvass of agree­ment” votes and requir­ing that all votes on motions to discharge to be recor­ded and made public.  We would like to see some addi­tional changes in this area.  In partic­u­lar, we recom­mend allow­ing spon­sors of bills to put discharge motions to the Rules Commit­tee (for a public vote), moving the cut-off date for discharge motions to later in the year,[18] lift­ing the restric­tions on the number of discharge motions that are permiss­ible on any given day, and redu­cing the number of days that a discharge motion must remain on the calen­dar before coming to a vote.

Even if a member manages to success­fully discharge a bill from a stand­ing commit­tee, he or she has no guar­an­tee it will receive a vote or debate on the floor. There must be some way for rank-and-file legis­lat­ors to bring to a floor vote bills that have been favor­ably voted out of commit­tee or have the support of a major­ity of members – even if the Major­ity Leader objects.

As we noted in our 2006 report, there are at least four differ­ent ways to achieve this:

  • The Senate and Assembly could provide that, on the motion of a major­ity of members of the cham­ber, any bill will imme­di­ately come to the floor for a debate and vote. The United States House of Repres­ent­at­ives and the Massachu­setts Senate, among other cham­bers, have adop­ted similar prac­­tices. In both cham­bers, a major­ity of members can force a bill to the floor for a vote through a discharge vote (or series of discharge votes) both before and after the bill has been voted out of commit­tee.[19]
  • The Senate and Assembly could mandate that all bills come to the floor for debate and a vote within a certain number of days after they have been voted out of commit­tee and passed through their auto­matic “second” and “third” read­ings. The Cali­for­nia Senate and the Massachu­setts Assembly, for exam­ple, have adop­ted this approach.[20]
  • The Senate and Assembly could allow any member to bring a bill out onto the floor by his or her own motion once it has been repor­ted out of commit­tee, as is done in the Pennsylvania Assembly and Wiscon­sin Senate.[21]
  • Finally, the Senate and Assembly could permit members to bring non-germane amend­ments to most bills. In prac­tical terms, this would mean allow­ing legis­lat­ors to obtain a floor vote on nearly any piece of legis­la­tion, as long as it was presen­ted as an “amend­ment” to pending legis­la­tion, whether or not it was rel­evant to that legis­la­tion. This is often how minor­ity party and rank-and-file members of the United States Senate have brought legis­la­tion to the floor.[22]

We applaud the steps the Senate has already taken to reform the discharge motion process.  But even with these changes, the current rules still afford the lead­er­ship the power to prevent a bill from being considered by the full cham­ber, regard­less of whether it has the support of a major­ity of members.

 

C.                 Insti­tute Mandat­ory Confer­ence Commit­tees

The 2004 report noted that New York had no estab­lished mech­an­ism to recon­­­cile differ­ences between bills passed by the two houses and thereby “prevent com­plete legis­lat­ive fail­ure if the Speaker and Major­ity Leader [could not] resolve their differ­ences directly in closed-door nego­ti­ations.”[23] All too often, the result has been grid­lock, even for bills that have over­whelm­ing popu­lar and member support.

The situ­ation in New York stands in stark contrast to that in other state legis­la­tures, where the use of confer­ence commit­tees is routine: One 1999 study found that the aver­age state cham­ber had used 59 confer­ence commit­tees in that year alone.[24] On the other hand, in New York, confer­ence commit­tees were used only rarely and never in a system­atic fash­ion.[25] Instead, to pass a bill into law, one cham­ber often had to substi­tute the other cham­ber’s version of the bill for its own, with the lead­ers of the two cham­bers work­ing out any differ­ences without the input of rank-and-file members.

In the years since the 2004 report, the Senate and Assembly appear to have convened more con­fer­ence commit­tees recon­cil­ing bills than in the past, at least for budget resol­u­­tions and “non-major” legis­la­tion.[26]. In addi­tion to budget confer­­ence commit­tees, there was a public confer­ence commit­tee to resolve differ­ences in the State’s imple­ment­a­tion of the federal Help Amer­ica Vote Act (though this confer­ence commit­tee meet­ing came pain­fully late, long after New York failed to imple­ment import­ant elements of the Act – this delay even­tu­ally led the United States Depart­ment of Justice to sue New York State for non-compli­ance).[27] But for the most part, the budget confer­ence commit­tees were excep­tions to the rule. In 2005 and 2006, confer­­ence commit­tees on major legis­la­tion contin­ued to be excep­tion­ally rare.[28] For all prac­tical purposes, the Speaker and Major­ity Leader must still resolve their dif­fer­ences before similar bills can be recon­ciled, regard­less of the views of the pub­lic or other legis­lat­ors.

Ulti­mately, the best way to ensure that similar bills in each cham­ber receive a con­fer­ence commit­tee is to adopt the recom­mend­a­tions in the 2004 Report: when bills address­ing the same subject have been passed by both cham­bers, a confer­­ence commit­tee should be convened at the request of the prime spon­sor from each cham­ber or the Speaker and Major­ity Leader. Such confer­ence commit­tees should include members from each cham­ber and should propor­tion­ally repres­ent the major­ity and minor­ity of each cham­ber. The commit­tee should convene for a “mark-up” session within two weeks of the request to recon­cile the differ­ences in the two cham­bers’ bills before final passage, and these sessions should be tran­scribed and open to the public.

This should be an easy change to make.  Assembly lead­er­ship has, in the past, indic­ated a will­ing­ness to adopt a joint, mandat­ory rule for confer­ence commit­tees.  If a rule similar to the one outlined above is adop­ted, confer­ence commit­tees should prove useful not only for over­com­ing the kind of legis­lat­ive grid­lock we’ve seen in the past in Albany, but also for making the legis­lat­ive process more delib­er­at­ive, more trans­par­ent, more effect­ive, and – with the right proced­ures in place – more demo­cratic.

***

We congrat­u­late the Senate for taking import­ant first steps in chan­ging the way the cham­ber oper­ates, and estab­lish­ing this commit­tee for the purpose of adopt­ing more complete, and needed, rules changes.  We look forward to further discus­sions of these changes with you and the commit­tee staff.

 



[1] Jeremy M. Creelan and Laura M. Moulton, Bren­nan Center for Justice at New York Univer­sity School of Law, The New York State Legis­lat­ive Process: An Eval­u­ation and Blue­print for Reform (2004) [here­in­after 2004 Report].

[2] Lawrence Norden, David E. Pozen, and Beth­any L. Foster, Bren­nan Center for Justice at New York Univer­sity School of Law, Unfin­ished Busi­ness: New York State Legis­lat­ive Reform 2006 Update (2006) [here­in­after 2006 Report]; Andrew Sten­gel, Lawrence Norden, and Laura Seago, Bren­nan Center for Justice at New York Univer­sity School of Law, Still Broken: New York State Legis­lat­ive Reform 2008 Update (2009) [here­in­after 2008 Report].

[3] Proposed rules changes are listed on pages 34 and 35 of the 2008 Report, appen­ded to this testi­mony as Appendix A.

[4] 2004 Report, at 5.

[5] Id., at 6.

[6] 2008 Report, at 4.

[7] 2004 Report, 11–12.

[8] Id., 8–9.

[9] Id., at 11.

[10] Id., at 13.

[11] Id., at 14.

[12] 2008 Report, at 5.

[13] 2004 Report, at 11 nn.67–68.

[14] Id., at 14.

[15] See e.g., Lawrence Norden and Jeremy Creelan, Bren­nan Center for Justice at New York Univer­sity School of Law, Lost in the Shad­ows: The Fight for A Senate Vote on Wetlands Protec­tion Legis­la­tion (2005); see also Benjamin Klein, Krueger asks for vote on ‘Super Bills,' The Legis­lat­ive Gazette, Jun. 18, 1007 (regard­ing bottle bill, wetlands legis­la­tion, and carbon emis­sions restric­tions); see also 2004 Report, at 44–45.

[16] 2004 Report, at 14.

[17] Id., at 22.

[18] The current dead­line for motions to discharge is the fourth Tues­day in April, a week before the Assembly cut-off date and well before the Bren­nan Center’s recom­men­ded cut-off date of 5 days before the end of the legis­lat­ive session.

[19] 2006 Report, at 24.

[20] Id.

[21] Id.

[22] Id.

[23] Id., at 36.

[24] Nat’l Confer­ence of State Legis­latures, Confer­ence Commit­tee Usage (July 1999 and July 2003 Update).

[25] 2004 Report, 35–36.

[26] 2006 Report, at 25.

[27] Id.

[28] Id., at 26.