Rob Gurwitt is a GOVERNING contributor.E-mail: firstname.lastname@example.org
Shortly before Christmas last year, lobby reform finally got its chance in New York State. A few months earlier, revelations of extensive gift-giving to legislators by tobacco lobbyists had created a statewide public issue. Over the course of the fall, sentiment for tightening the rules seemed to be on the increase, in closed-door negotiating sessions, in closed-door party conferences in each house, in closed-door conversations among legislators. Finally, in mid- December, the state Senate passed a bill that had much of what reformers wanted, including strict limits on gift-giving.
But what had taken months to construct took only hours to kill. Republican Governor George E. Pataki didn't like the part of the bill that covered lobbying of state agencies; Assembly Speaker Sheldon Silver, a Democrat who rarely agrees with Pataki, didn't see any reason to stop lobbyists from taking legislators out to dinner or sports events.
Pataki and Silver struck a deal on a measure that excluded both of those provisions. Its first appearance in public was on the Assembly floor at 2 a.m. the following day, and it passed without debate. A week later, the Senate accepted the Assembly's version.
This is the way the New York Legislature works. There was great public interest in lobby reform and real debate among legislators--in private--about what to do. But there were no passionate public debates, no competing bouts of testimony by lobbyists and do-gooders, no points where the outcome hung in the balance, no surprises. Instead, the legislative process delivered an answer at an hour when most New Yorkers were asleep; by the time they woke up, it had become for all intents and purposes a fait accompli.
Three decades ago, at the dawn of what has become a generation of change in state legislatures, a story like this wouldn't even have been worth telling. All over the country, strong legislative leaders were able to impose their views either by dint of personality or by manipulating the rules of the process. But since then, and especially in the past decade, the authoritarian legislature has become a rarity. Power has become less centralized. Processes have been opened up to the participation of backbench members, even newcomers. It is no longer a foregone conclusion that bills pass only when the leaders want them to.
This is the way the legislative process in America has been moving. But when you say that, you need to add four words: except in New York. New York is a special case. There are many state capitols you can visit these days to pick up clues about what legislating in the 21st century will be like. But if you want a lesson in the way the process worked for most of the last century, Albany is the place to go. It is the capital of yesterday's politics.
For a complex array of reasons, the New York Assembly and Senate have been more or less impervious to the democratizing tides that have swept state legislatures in recent years. This is an "unvarnished legislature," in the words of one of its members, Republican Senator James Lack, a former president of the National Conference of State Legislatures: "It operates mainly in the same manner by which it did decades ago." It does this not so much because its leaders are tyrants but because the entire system, from the rules of procedure to the entrenched campaign practices, is focused on one thing: preserving the status quo--the decades-old balance dividing power between the two parties.
To understand the anachronism that is the New York Legislature, you need to know one overriding fact: For more than a quarter-century, the Assembly has been Democratic and the Senate Republican. During that time the governorship has been up for grabs--held by Democrats Hugh Carey and Mario M. Cuomo and by Republican Pataki--but over the course of an entire generation, each house of the legislature has become the preserve of a single party.
And Democrats and Republicans both like it that way. In 1981 and again in 1991, the majority in each chamber essentially took responsibility for drawing its own district lines. Democrats in the Assembly voted to reinforce their control at the cost of driving Senate Democrats deeper into the minority; Senate Republicans helped themselves at the expense of their GOP Assembly counterparts. "In the end, each side holds its nose and votes for the bill, knowing that they're undermining their own party in the opposite house," says Jack McEneny, a Democrat who represents Albany in the Assembly. "So the minority continues to get weaker, and the majority tends to get stronger."
This has created a degree of electoral stability that party leaders in other large states can only envy. In the last legislative election in 1998, 193 of the 211 seats in the legislature were won with 60 percent of the vote or more. Not a single incumbent was unseated. "New York," says one political scientist, "has the most extreme majority- party incumbent-protection system that we have in this country."
To many experts, the more or less permanent balance of power has created a dysfunctional politics. "By any reasonable definition of representative democracy, it's just not working," says Gerry Benjamin of SUNY-New Paltz, perhaps the leading academic critic of the legislature. "Divided partisan control leads to deadlock and an incapacity to respond, and that's institutionalized as a result of the way campaigns are financed and districts are apportioned."
Not everyone agrees. Jeff Stonecash, who teaches at Syracuse University--and who is also employed by the Assembly to teach its college-level interns once a week--is far less concerned. "I don't think turnover per se is a positive or a negative," he says. "What you want are legislators who represent their districts. Indeed, having a lot of people who are veterans is valuable: They're not hoodwinked by the governor, they don't get hustled on policy changes and they know their districts."
Whatever benefits may exist, it's beyond doubt that the unchanging balance of forces has produced a constricted legislative process. It is not focused on ensuring that members have a chance to influence policy but on the end-game: the negotiations among the Assembly Democrats, the Senate Republicans and the governor, with the majority in each house--often, just the speaker and Senate majority leader, acting as proxies--maneuvering for leverage in the final negotiation.
All the points at which a minority view might be heard--in a committee hearing, say, or through amendments on the floor, or through a last-gasp effort to discharge a bill from committee and force a floor vote--have either atrophied over time or never developed at all. Amendments essentially do not exist as a legislative tool: In the past 30 years, only twice has one actually been successful.
Then there is the committee system. Both houses have committees, but they hardly serve as points of entry for the public or even for rank- and-file members. For the most part, they do not hold public hearings. Sometimes, this is because the chairman has decided that more can be accomplished by sitting the various interests down together and hashing out their conflicts in private. But sometimes committees don't hold any kind of meetings, except to vote on a bill, because all the work is done by the chairman and aides, or by the central leadership staff in occasional consultation with the chairman.
And because the committee system is essentially ad hoc--some chairmen develop a profound expertise in their subject and so are given leeway by the leadership, while others are ignored--committees are not a reliable means for ambitious members to develop their skills. Instead of attending hearings or markup sessions, as they would in other states, rank-and-file members concentrate on learning to lobby the few members who really do matter, or turn to outside lobbyists to help them out with the leadership. "By not having a committee system," says Frank Mauro, who runs a think tank in Albany called the Fiscal Policy Institute,, "you really don't have a basis for decentralization and division of labor. And only with those do I think you can have the benefits of representative democracy."
None of this is to say that the New York Legislature is simply a pair of dictatorships, or that the entire legislative process comes down to "three men in a room," as the press commonly likes to refer to the governor and the leaders of the two chamber majorities. On what are sometimes called "mid-range issues"--those not involved in the end-of- session horse-trading--room for individual initiative does exist in both houses. In the Senate, Majority Leader Joseph L. Bruno is inclined by nature to consult colleagues, and the smaller Republican majority means he has less latitude to anger his members. Even in the more tightly controlled Assembly, ambitous members can seize an issue and run with it, if the speaker lets them. This is why Silver takes pains to assert that, in the final analysis, "this is a member-driven legislature."
But if so, it is not member-driven in the way that most of the other 49 are. In other states, leaders are strong by virtue of a few rules-- say, the ability to dole out committee assignments--or by their control over party campaign cash. In New York, the leaders have it all. They not only control committee assignments, they also control all the additional appointments--chairmanships, leadership posts and the like--that can boost a legislator's pay substantially. They assign offices and parking spaces, they allocate the money for members to hire staff, and for the most part they hire the committee staffs themselves. They control the funding for "members' items," the expenditures that each legislator uses to help out his or her district.
And, while most ordinary members do their own campaign fundraising, the big money goes to the leaders: Their political committees are allowed to accept $79,500 a year from each donor in hard money with no limits on how much can be handed out to the membership. As Blair Horner of the New York Public Interest Research Group puts it, "That's not a campaign contribution limit, that's a goal."
But the bottom line is that for any member who wants to have an impact on policy, the leaders control the process. "You always know you need leadership support to put your bill on the calendar," says Jerrold Nadler, a Democrat who now represents Manhattan in Congress but spent years in the Assembly. "You know that you can't pass your bill if they don't want you to because the system is so centralized. So they don't have to threaten you, you just know how the system works. You're always going to the speaker's counsel and saying, `Gee, can we put my bill up on Tuesday?' If they want to, they can just make your life miserable."
If there is a place in the process where ordinary members have a chance to be heard, it is in the party conferences--indeed, defenders of the legislature insist, that is where true participation can be found. "The leadership absolutely controls the agenda," Stonecash concedes, "but there is this mistaken belief that the speaker or the majority leader operates independent of the members. In fact, in the party conferences they hash out what members can live with, the leaders make pitches for what should happen, and there is a remarkable give and take."
Assembly Democrats point, for instance, to a heated debate a few years ago over whether HIV testing of newborns should be done anonymously, as had been required by law, or whether a mother should be told that her baby tested positive. Some civil libertarians were dead-set against the idea, others favored it, and after long and heartfelt discussion, the Democratic conference decided to support changing the law. "A conference like that was wonderful, it gave you a bigger respect for your members," says McEneny. "I was sorry we didn't have the Republicans in the room, because it transcended party."
Because party conferences happen behind closed doors, Republicans aren't the only ones kept from watching the Assembly's majority do its deliberative work. The people of New York State are excluded as well. A given conference meeting might indeed be a democratic free-for-all, with junior members able to participate and put their imprint on public policy, but no one besides members and staff of the majority party would ever know.
The fact is, though, these closed-door sessions aren't especially democratic. They are as participatory or as regimented as the leadership chooses to make them on a given subject. For every instance like the HIV bill, there are many more in which rank-and-file members may be free to express opinions but have no say in the final legislative product. Last year, for example, the legislature argued over a commuter tax on suburbanites who work in New York City. Fearing that suburban Democratic voters would be upset, Speaker Silver had it rescinded. It wasn't a decision of the full legislature, or even of the party conference; it was basically a personal decision. Assembly Democrats from the City were angry, but powerless to stop him.
Four years ago, Bill Parment, a veteran Assembly Democrat, decided simply to stop going to party conferences, except to learn the particulars of important legislation. "It was an exercise in mind control that I really didn't want to participate in," he explains. "At noon on Monday, there would be a press conference by the speaker, who announced that we'd pass a particular bill that day. Then, at 2 o'clock, they'd gavel the Assembly into session and call for a party conference. So you'd go to conference and conference the bill the speaker had already announced would be passed. It was just a matter of giving the members a chance to vent their emotions about the piece, to praise it or damn it, but the decision had already been made. The idea of having a conference was just a matter of massaging the outcome."
For Assembly Democrats from New York City, or upstate or suburban Republicans in the Senate, this does not always seem like such a bad thing. Most of the time, they are in agreement with what the leadership decides to do. But Parment is a rural Democrat from a small county closer to Cleveland than to Albany. "For a member from western New York to get up and voice an opinion that was different from the majority from New York City," he says, "was to invite their hostility and sometimes their scorn. They were certainly not collegial, and they weren't much interested in my opinions, whatever they may be."
There are, to be sure, good reasons for keeping the party conferences closed to outsiders. As Silver points out, it makes no sense to develop caucus positions in public, if the end-game will boil down to private negotiations among himself, Bruno and Pataki. "If you had a public negotiation of the conference position," he says, "all someone would have to do is look in and determine exactly what the negotiating range is; by putting out in public that you'll accept less, it wouldn't be a very productive negotiation, from the conference point of view."
Two years ago, it suddenly began to look as though the glacier were about to move. Silver and Bruno, who the year before had decided to allow occasional conference committees to resolve differences between the two chambers on mid-level bills, upped the ante: They agreed to allow conference committees to meet and hammer out differences on the budget. This was a significant concession, since over the past few years the budget has taken up a larger and larger portion of the session each year, and a growing number of policy issues that once were resolved separately have come to be folded into the budget negotiations.
For three days, conferees from the two chambers met to come to terms on policies affecting education, transportation, health and all the other important budget categories. The hearing rooms were jammed, not only with lobbyists and the press, but with rank-and-file members who suddenly had an opportunity to put in their two cents' worth on any issue. "It was liberating," says Jack McEneny. "Everyone was there, and even if you weren't on a committee, you could participate indirectly. You could bounce from one meeting to another, and feed issues to be sure they were publicly asked. You had everyone involved. Morale was great, and everybody felt good."
Everyone, that is, except Pataki. To indicate his displeasure at being left out of the process, he used his line-item veto to eliminate roughly $1 billion from the budget the two chambers had agreed on. His cuts fell disproportionately on items backed by Democrats in the Assembly. Not only did the vetoes "put a wet blanket on everything," as McEneny puts it, they also convinced Speaker Silver--the opposition leader--that the only way to prevent this in the future was to go back to the old system of personal control. And so, last year, budget conferees were given a say over only a tiny portion of the budget; the exercise was, as Republican Senator Kemp Hannon puts it, "meaningless."
For now, reformers have pinned their hopes on a bill drawn up in the Assembly by Sandy Galef, a Westchester County Democrat. Galef would require conference committees whenever the two chambers pass different bills on the same subject, as a means of devolving power away from the leadership and into the hands of ordinary members. "For too long," she says, "we've had a legislature run by two people, perhaps guided by the governor. I think it's time for us as elected officials to take on our true responsibilities, to be totally involved in the process and be part of developing a consensus, be part of the solutions to problems in our state, instead of being on the sidelines."
Galef has gathered 117 co-sponsors from both parties for her measure. So far, though, she has been unable to find a Republican sponsor in the Senate. The Assembly leadership has refused to allow a final version of the bill to be printed.
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