Legislative Hodgepodge

"The Fault...is Not in Our Stars..."
Why Legislators are Underlings.

By Henry J. Stern
July 26, 2004

We among others have written and spoken a great deal about New York State's dysfunctional government. As we chronicle the problems of pervasive secrecy, structural gridlock, subservience to the speaker and majority leader, gerrymandered lifetime seats, a swollen legislative payroll, which includes noshows, dominance by public employee unions and other special interest groups, lobbyists who are richer and more powerful than the people they lobby, and a thoroughly politicized and money-driven executive branch, we turn to the question of how, if at all, any of these conditions can be remedied within existing structures of government.

The general view of newspaper editorials and columns (see the Times, News, and Post), not widely disputed, by observers of the subject, is that the state Legislature as it currently operates is a travesty. With salaries of $79,500 a year, plus lulus, expense accounts, and travel allowances for part-time jobs — only exceeded by the New York City Council’s $90,000 plus lulus — the 62 senators and 150 Assembly members are richly rewarded for raising their hands on occasion to ratify the decisions of their leaders. In fact, with electronic voting, they don’t have to raise their hands at all; they can simply press a finger. Spare the finger; they need not be present in the chamber to be recorded affirmatively on roll calls.

Through bipartisan gerrymandering, the Legislature has made most of its members as secure in their seats as federal judges, who are appointed by the president for life. I have noted that recently more legislators are removed by prosecutors than by voters. Bret Schundler, formerly the mayor of Jersey City, N.J., points out that, in a democracy, constituents are supposed to choose their legislators. In New York and many other places, it is the legislators who choose their constituents when they decide what the lines of their district shall be.

Some progress was made last week when the Assembly passed a bill extending DNA testing to many additional crimes. The bill had been held up for five years by an anti-DNA testing faction in the Assembly. There is no question that some Assembly members are against any bill that would improve the criminal justice system except repeal of the Rockefeller drug laws. Their sentiments are similar to those members of Congress who vote against every defense appropriation or weapons system. It required leadership for Speaker Sheldon Silver to move this matter over their previous opposition, and he deserves credit for that.

The remark of state Senate Majority Leader Joseph Bruno that legislative reform was “third-world-country stuff” was picked up by some editorial writers as a negative, of course. But what Mr.Bruno was saying, in his first-world rural upstate style, was that a Legislature controlled by 212 individual members (62 plus 150) would be anarchic. On the other hand, a Legislature controlled by only two members (Messrs. Bruno and Silver), with the governor as the third member of the troika, is tyrannical.

Mr. Bruno has received the fewest complaints. Although he passed the commuter tax repeal along with Mr. Silver and the Ways and Means Chairman Herman “Denny” Farrell, who doubles as the Democratic Party’s state chairman and New York County chairman, Mr. Bruno wasn’t elected by New York City voters, who were the victims of the blunder of the decade. Mr. Bruno also moved his conservative senators to approve the Sexual Orientation Non-Discrimination Act, the first gay rights bill for New York State, and to increase the minimum wage. And he has extended rent control, albeit with vacancy decontrol to provide market-rate housing.

All this whining, however, will be of little use unless a path is found out of the quagmire. The walls of incumbency guard the castle of privilege closely, defending it vigorously against foolhardy challengers. For it happens that as little as the public likes or dislikes the Legislature as a group, people do approve of their individual legislators, who have been bombarding their mailboxes with self-serving literature at public expense since the time they were first elected. Before that, the literature came at the candidates’ or the legislative leaders’ campaign committees’ expense. The chickens can be bought before they are hatched.

In New York state, without initiative or referendum, which are part of the constitutions in other states, including California, constitutional amendments must be initiated by the very Legislature that is the source of much of the problem, and adopted by two separately elected sessions. The next time the people will get a chance to vote on whether a constitutional convention should be called is 2017. The last time such a vote was held was 1997, and the majority then voted against holding a convention because of heavy lobbying by special interest groups — business and labor — who thought that their interests would be better protected with the existing hodgepodge of trivia and privilege that permeates the state constitution.

The legislative situation is anomalous. To the extent that people think about the issue, the current situation is unfair and undemocratic, except, of course, to the three men in a room. The three have developed a rather strong dislike for each other, but they act as a unit in rejecting attempts by other elected officials to engage in power-sharing. Mr.Bruno puts it vividly: There are 212 legislators; do you want 212 separate agendas? How would anything ever get done? He warns of anarchy — the state drifting into lawlessness and futility because of the absence of his or Mr. Silver’s leadership.

When I was a city councilman, from 1974 to 1983, I had the same experience as today’s legislators. The undisputed ruler of the Council was Thomas J. Cuite, a Brooklyn Democrat whose power was enormous. He held it because he was elected by the council members or the Democratic county leaders who gave them orders to be majority leader. The municipal Legislature, formerly the Board of Aldermen, did not then use the grand title of speaker for its leader; it did not yet ape the British House of Commons, the House of Representatives, and the New York state Assembly.

The City Council, which at the time had 45 members, functioned under the direction of Mr. Cuite like an orchestra responding to a conductor. The leader determined whether each committee would or would not meet; whether any bill introduced would or would not receive a hearing, what the disposition would be of any matter before the council; which mayoral appointees would be confirmed and which would be rejected. He also hired and fired, where necessary, which was quite rarely, the City Council staff, smaller than it is today. Mr.Cuite was the alpha and the omega of the council, and whether you liked him or not, you did your best to make him like you, if you wanted to get bills passed, secure funds for projects in your district, chair a committee, hire staff for your committee, if you had one, or get responses to your constituents’ wishes.

Although the council was under boss rule, one must add in fairness that many Council members had no desire to exercise independent judgment on most of the matters decided by Mr. Cuite, sometimes in concert with Democratic county leaders. They were occasionally embarrassed by having to cast votes of which their constituents might disapprove, but they were immunized from political reprisals by the supermajorities that voted for these measures. Important issues were always arranged to be passed by more than one vote, so no one could ever be accused of casting the deciding vote for an unpopular measure. The same power matrix applies in Albany today, 30 years later.

The problem is not that X is a leader — there will always be leaders and followers. The issue is how he leads. Does he have a sense of the public interest? Does he move recalcitrant colleagues where necessary to achieve important goals? Does he allow bills to be considered on their merits, rather than on the personal relationship he has with the sponsor? Is he fair in the allocation of resources, state funds (pork to some) and individual members’ staffs (bacon, because you bring it home)? Does he work and play well with others, in this case his counterpart in the other house and the governor? What is the quality of his professional staff; how competent are they? Do they commit crimes more than once? Previous speakers from Brooklyn were well regarded, in part because of the very able lawyers they hired as their staff. What degree of compliance or subservience does he demand of his members? These and other questions properly go into the evaluation of a legislative leader.

Hopefully, the attention now focused on dysfunction in Albany will lead to serious procedural reform. But the bottom line in a Legislature is the relationship between the elected leader and the members. Of course, it is the members that first elect the leader. But once they have done that, they often find within a few years that the tables have been turned.

Now is the time to make the Senate and Assembly leadership more sensitive, more innovative, and more responsible than it has been for some years. It would be a shame if all they did was rearrange the deck chairs you know where. Or, no better, to leave the deck chairs as they are.