Our Dysfunctional Legislature

We Elect, Party Bosses Control.
Unions, Lobbyists Often Prevail

By Henry J. Stern
May 21, 2004

In recent months, numerous articles and editorials, mainly in the Times and the News, but joined in and amplified by Newsday, the Post and the Sun, have found serious problems with aspects of New York State government, particularly the State Legislature.
 
The Senate and Assembly have been repeatedly gerrymandered by mutual consent of both political parties, so that the Senate is overwhelmingly Republican and the Assembly is Democratic by a 2-1 margin. Since the approval of both houses is necessary for a bill to be enacted, this means that both Senate Majority Leader Joe Bruno, a Republican from Brunswick, and Assembly Speaker Sheldon Silver, a Democrat whose Lower East Side district was so ably represented by Alfred E. Smith, have veto power over any proposal.
 
Both houses concur in a system of internal governance under which, after the leader makes a decision on an issue, any dissent by a member is considered an act of disloyalty to the leader and the party, unless it is permitted in advance. In the City Council, where I served nine years, this was considered "going off the reservation." Such deviance subjected the offending member to various sanctions, including loss of committee assignments and accompanying lulus (payments in lieu of expenses; pensionable, but not strictly verifiable), not getting a hearing for any of your own bills, much less having them passed, and possible loss of funding for member items. That is why most legislators keep their grievances to themselves, and do their leaders' bidding.
 
This arrangement is not criminal; it is part of the basic social organization of groups of people and animals when an alpha male is selected and the other creatures follow his lead. If they can overturn the alpha male, there will be a new alpha male (David Patterson for Martin Connor as Senate minority leader, a far less powerful position). But should a coup attempt fail, the rebels face severe punishment. This happened in the House of Representatives, where there was a plot to topple Speaker Newt Gingrich in July 1997, and in the State Assembly, where Majority Leader Michael Bragman's plan to replace Speaker Silver failed in May 2000 when two of Bragman's early supporters, former State Comptroller Carl McCall and Bronx leader Roberto Ramirez, chickened out.
 
The legislators, having abdicated their responsibility to exercise independent judgment, proceed to blame "the system" when they are unable to deliver on their commitments. If they had been able to deliver on their promises, the state would probably have gone bankrupt already. Today, it is teetering on the edge through its policy of ever-increasing borrowing under one pretext or another, pushing the marker to the next generation.
 
The newspapers rightly denounce the dysfunctional legislature — the Times in a series of editorials entitled "Fixing Albany," the News with particular vigor on its editorial page. Read their not-so-sentimental farewell to a recently resigned senator, the Bronx's Guy Velella. It is clear that Senator Velella made many friends in his 30-year career. He would have been a senator for life, if not for the persistent investigation by New York County District Attorney Robert Morgenthau, who successfully secured his resignation as part of a plea bargain. Velella said he was quitting in order to protect his 90-year-old father, Vincent Velella, who is currently holding a modestly paid public office ($12,500 per annum) as designee of the Bronx Republican organization to the New York City Board of Elections. Although the senior Velella was considered not competent to defend himself at his bribery trial, he is apparently able to serve as one of ten commissioners of elections (one from each party, and one from each borough). That is probably true, since there is no legal requirement that commissioners be able to assist in their own defense (that's -als, not -les).
 
The New York State Legislature, currently 62 senators and 150 assemblymembers, is a mare's nest of gerrymandered districts, drawn with great care to ensure lifetime incumbency without partisan challenge. In effect, legislators receive tenure, subject only to conviction of a felony. In return, the privileged, pampered, and pliant politicos perpetually and purposefully perform at the pleasure of their principals.

Note, for example, the unanimity with which the State Senate overrode Governor Pataki's objections to the complex borrowing scheme for the New York City budget just upheld by the Court of Appeals. Surely there were some Republican fiscal conservatives upstate who did not approve of the state borrowing upwards of $5 billion over thirty years to pay the city $2.5 billion over the next five years. Nonetheless, they went along with their leader, Senator Bruno, because the Senate is his house. Their motive is part courtesy, and part fear.
 
The question we ask is why, if everybody knows the State Legislature is a fraud on the people of New York, can no one do anything about it? To offer an answer, I go back over a half-century to my childhood. My father would come home from work carrying the World-Telegram, an evening newspaper (published from 1931 to 1950 under that title). I would spread it out on the living room floor and read it.

I noticed that the newspaper often carried articles about Frank Costello, the gangster, and referred to him as "Prime Minister of the Underworld." I knew what prime minister meant because Winston Churchill was prime minister of Great Britain, a very important position. So I asked my father: "If Frank Costello is prime minister of the underworld, and if the World-Telegram knows about it, why don't the police read the newspaper and send him to jail?"

My father said the issue was complicated. So years later I went to law school to be able to answer the question. I did learn the answer: there are many bad things in the world, but the legal system does not address all of them, in part because it is bound by rules, as it must be under due process of law. What is required to convict is proof that the defendant committed the crime — not just general, or even universal supposition that someone is dishonest. Sometimes, even proof is not enough. (See People of the State of California v. Simpson [1995]; De La Beckwith v. State of Mississippi [1963]. These are not citations to judicial decisions, but links to information about criminal cases where verdicts defied proof.)
 
Similarly, there are many things wrong in politics, but they often cannot be addressed under the current system. Part of the problem is that the bad guys (bad in the sense of maintenance of personal power and influence, at the expense of justice and the public good) are running the system. Most of these people are not intrinsically evil — by and large they do not beat their wives, but many of them cheat during cold Albany winters. The Bear Mountain rule is that whatever happens in Albany, stays in Albany. The peaks along the Hudson serve as barriers to embarrassing disclosures that may flow downstream to the estuary.
 
The question of how to deal with these well-entrenched barnacles defies a ready answer. If it were simple, there would have been action long ago to clear out the culture of backscratching and logrolling that pervades Albany. Occasionally, an outsider, like Rudolph Halley, can win on the issue of public integrity. Halley, who had been counsel to Senator Estes Kefauver's commitee investigating organized crime, was elected City Council President in 1951 on the Liberal line. He was defeated for Mayor in 1953 by Robert F. Wagner, Jr., who had won the Democratic nomination by ousting Mayor Vincent R. Impellitteri in the primary. Halley did not seek public office again.)

By and large, however, intruders are either absorbed or expelled by the corpus of self-interest. As it is in biology, so it is in politics.

One way to escape from New York's sclerotic system would be to adopt a new State Constitution. Under the current state constitution, the question of whether to hold a constitutional convention is placed before the voters every 20 years.

The most recent vote on this issue came in 1997, when the proposal was defeated by a vote of 929,415 yes to 1,579,390 no, with 1,693,788 blank ballots. Actually, blank defeated no, but those votes did not count. Many special interest groups, including public employee unions, campaigned ffor a 'No" vote on the referendum, fearing that a new State Constitution would modify some of the special rights and privileges that these groups had gained over the years from the compliant legislature of members they biennially endorse for re-election. The issue will next arise in 2017.
 
A problem with constitutional conventions is that the members are elected from State Senate districts that have already been carefully gerrymandered in favor of the Republican Party. Three people are elected from each district, making a total of 186 delegates who would consider proposed revisions to the constitution. If adopted by the convention, such amendments would be submitted to the voters of the state for approval at the next November election.
 
Just as individual citizens are relatively powerless to deal with perennial legislators, the elected officials are in turn submissive to special interests: business, unions, religious or racial groups, civil servants, all of whom have powerful lobbies which form the backbone of legislative campaign financing, year in and year out, they hold the fund raisers at which Albany eats, drinks. These are also the occasions for the formations of new friendships.

Recently, California Governor Arnold Schwarzenegger has changed the game by dealing directly with the special interests, bypassing state legislators as intermediaries who make the process more time consuming and expensive. Even if political contributions are not necessary for victory, legislators like to collect them, and donors like to provide them because they give them the belief that they have a claim on the legislator. The tribute legislators receive may be spent on other campaigns, or contributed to a colleague's defense fund when he is in trouble with the law.

The issue of contributions presents an interesting problem for Mayor Bloomberg. He does not solicit or accept donations, because he does not need or desire other people's money. A byproduct of this policy is that there are no people who imagine that they have influence over him because of their contributions. What the mayor does have, however, is emotions, and he views with particular distaste those hedgers who, while professing their admiration for him, give their money toGifford Miller and other ambitious Democrats seeking his position.

When the issue of control of the public schools came up in Albany in 2002, some legislators felt obliged to do whatever the United Federation of Teachers wanted, because they had been taking money from the UFT for so many years. In their view, it would be dishonorable for them to take money from the union and then fail to comply with their wishes, especially if they were only trying to preserve their existing privileges . Contrary to the axiom, there can be honor among thieves.
 
The polluted streams of gerrymandering, demeaning submission to leadership, the tyranny of campaign contributions, the desire to please contradictory constituencies, the fear of upsetting the status quo, the pull of unusually fat pension systems, the presence of sexual playthings in a city distant from one's home, the generous lulus that a member can spend at his/her pleasure (although not necessarily for his/her pleasure), all these streams flow into the sea of self-indulgence which permeates the Legislature. Even when members are personally money-honest, and I believe that most of them are, they are powerless to affect the time-honored and comfortable practices of the Senate and the Assembly. And the masters of the house, who get the last word indrawing the lines of their districts, as long as they are not sufficiently egregious to warrant court interference, assure the perpetuation of these traditions.
 
The newspapers and the handful of civic groups that have not been co-opted by the authorities should work together to prepare a plan of action, a road (with or without a roadmap) which will necessarily be long and winding, but will lead at some point to the recapture of state government from the interests which fatten on it. Or, they can engage in role-playing, ritually denouncing the evils that they are not really working to correct because they do not want to jeopardize their access to the leadership.

Reform is not a diet for everyone — otherwise there would be much less to be reformed. It is also an area where traditionally hypocrisy, ambition and self-absorption appear to come with the territory. But that does not mean that the work cannot be done — it only makes it more difficult to accomplish.
 
Nor can one expect to win a struggle like this in a week, month, year or a session. The battle for honesty, intellectual and financial, is endless, with reverses as well as victories. But the least we must say is that the issue should be joined.

At this point, the forces of privilege are in full command of important parts of state government, and they are getting a free ride as long as the forces of decency confine themselves to verbal assault. Is Bob Morgenthau the only man who can tame Albany? Where is Eliot Spitzer, the nemesis of Wall Street? He has done spectacular work in collecting billions from corporate America to exempt its leaders from criminal prosecution. Hopefully, he will look at public sector misconduct as thoroughly as U.S. Attorney Rudy Giuliani once did. It didn't hurt Giuliani.

Where are today's U.S. attorneys and county district attorneys? It is difficult for outsiders to evaluate their effectiveness, because they can argue that, if there were no indictments, it is because there were no crimes in their districts. The classic New York response to that claim is: "If you believe that, I've got a bridge to sell you."
 
We believe that the Augean stables have to be cleaned, and then re-cleaned, over and over. The weaknesses of human nature, combined with power over others, lead to situations in which ethical principles are frequently compromised, to say the least. Neither good nor evil will win this struggle permanently, but at least the forces of independence and integrity in New York City should make a fight of it.

Previous instrumentalities of political reform have been co-opted or absorbed into the system, or corrupted by it. The Democratic Reform Movement of Eleanor Roosevelt and Herbert Lehman faltered with their passing. The West Side Kids, once young and idealistic, grew old and rich, and the Liberal Party as well has strayed far from the mission that motivated its great founders.

Purity of heart and soul is no guarantor of political success. The compromises necessary to achieve victory turn the most high-minded people into squabblers. That is why the bosses have an inherent advantage; they know what they want, power and pelf, and they know how to get it. If they do not succeed, they will be replaced by other sharks who are more effective.

This article is intended to give you our view of the State Legislature today. We ask what you think should be done to promote honesty and responsibility in the conduct of government. Then we go to the next question, (our Rule 17-C): Who will bell the cat?