NYCivic

The New York State Legislature:
Why Is it Called America's Worst?

By Henry J. Stern
August 20, 2004

Democracy is based on accountability. If a public official does a good job and pleases his constituents, he deserves re-election. If he does a poor job and his constituents are unhappy, he is likely to be defeated for re-election because constituents will prefer someone else.

By and large, democratic choice is a principle that we put into practice wherever we can. The more people involved in a decision, the less likely that decision is to be arbitrary or unilaterally controlled. That is why dictators are much more likely to start wars than democrats.

Unfortunately, a traditionally important area of democracy has been hijacked by a clique of insiders. It is the New York State Legislature, where the individual members, all elected officials, have forfeited their authority to the leader of each house, Majority Leader Joseph Bruno and Assembly Speaker Sheldon Silver. This rule by two — a duumvirate — has its points. The leaders’ judgment on some legislation may be equal to or better than that of members who have parochial interests. It is also, at least in theory, easier for two people to reach agreement than 212, the number of legislators in New York State.

Through bipartisan gerrymandering, state legislators (62 senators and 150 assemblymen) are practically guaranteed reelection. The gerrymander carves out districts that are clearly dominated by one party. In the Senate, these seats are largely Republican; in the Assembly, they are mostly Democratic. In most districts, there is no real choice for voters because the candidate of the dominant party is assured of election.

The situation somewhat resembles the red states and blue states on the electoral map of America. Some states are seen as strongly favoring one candidate: red for Republicans, blue for Democrats. The result is that serious campaigning is not conducted in the committed states, but is largely limited to the swing states. The colored states are taken for granted or written off as hopeless. People and money are attracted to real contests, not runaways or lost causes.

In addition to designing safe seats for each party, legislative districts are tailored to individuals’ personal electoral requirements. They pay no respect to physical boundaries, geography, other political lines, or community or neighborhood needs. They are crafted carefully to protect incumbents by including their friends and excluding potential competitors. Since the speaker and the majority leader determine the lines for each house, ordinary members have additional incentives to seek to ingratiate themselves with the leadership. With New York State losing congressional districts with every decennial census, and therefore requiring compressive redistricting, House members are well advised to be on good terms with state legislative leaders.

State boundaries, from which United States senators are elected, are defined historically and cannot be gerrymandered. Districts for the House of Representatives and state legislatures are subject to gerrymandering by whichever party is in power, with courts stepping in if the two houses cannot agree.

Perhaps the most egregious example of the misuse of districting for partisan purposes occurred in Texas in 2003, where House Majority Leader Tom DeLay, known as “the Hammer,” drew new lines to create seven Republican seats. This would help assure Republican control of the House in 2005. State troopers were called out to arrest fleeing Democrats attempting to avoid a legislative session in which a Republican majority would redistrict the state. New lines for Texas districts had already been adopted pursuant to the 2000 census, but they were not partisan enough for Mr. DeLay.

In addition to the power to draw district lines, the legislative leadership designates deputy and assistant leaders and committee chairs. It assigns members to committees, and fixes lulus — salary supplements for selected members, called lulus because they are theoretically paid in lieu of expenses that might be incurred by committee chairs.

The leaders also decide, through the Rules Committee, which bills will be allowed to come to the floor and when and whether hearings will be held on any bill. It is possible for bills sponsored by a majority of the members never to come to the floor for a vote; that happens because the nominal sponsors are not enthusiastic about the bill, but desire to be recorded in its support. This promotes an atmosphere of hypocrisy, in that legislators may or may not really support their own bills.

New York State does not have an initiative or referendum provision in its constitution — nor a provision for recall, which Californians used to remove Gray Davis and elect Arnold Schwarzenegger in 2003. The rulers of the Legislature have no incentive to change the system under which they exert extraordinary influence.

The situation in the Legislature is similar to the dominance over the City Council by the late Thomas J. Cuite, who was vice chairman and majority leader from 1971 to 1985. Peter F. Vallone Sr., who was speaker from 1986 to 2001, was somewhat more collegial than Mr. Cuite with regard to member initiatives. His son, Peter Jr., now holds his Council seat, along with no fewer than eight other children of present or former elected officials — Addabbo Jr., Boyland, Clarke, Dilan, Foster, Rivera, Serrano, and Weprin — who serve on the Council. That is nine legacies out of 51 members, a far greater percentage than Harvard or Yale. In the U.S. House of Representatives, from 1903 to 1911, Speaker Joseph “Tsar” Cannon held similar power over the membership.

One answer to the problem of total leadership control is a set of rules changes requiring regular committee meetings and public hearings on proposed legislation, giving members the right to participate in certain committees, and creating conference committees when the two houses are at odds. Another is to abolish the Rules Committee, or limit its power, as was done in the House of Representatives in 1961, in President Kennedy’s first legislative victory.

But no matter what structural reforms are adopted, they will have minimal impact if the majority of members do the leaders’ bidding on every issue. The most arbitrary legislative leaders claim they are democratic; they say, “The majority elected me, and therefore I represent the majority. You represent only yourself.”

The question comes down to one of balance, how to combine reasonable and responsible leadership with maximum feasible participation by the legislators. It is a fact of human nature that in an organization, when authority is widely diffused between theoretical equals, either an individual or clique will, in time, come to dominate the others and compel obedience until they, in turn, are overthrown.

Electing new leaders is not a complete answer. Mr. Bruno is likely the best the Senate has to offer, and Mr. Silver is relatively moderate. (He supported Joseph Lieberman for president.) He is thought of as personally honest, despite enduring harassment by the State Lobbying Commission. His vices are not his personal views on legislation, but his surrender to the most radical elements in his party caucus, the minute control he exerts over every aspect of the Assembly, and the fact that his favorite strategy is delay because he believes his opponents will be compelled to come to him to compromise. But while he spins his web, and awaits the spider, no other state business may be transacted by anyone in the Assembly or on his staff. The entire state is held hostage to his peculiar method of dealing with public issues.

What, then, to do?

Legislative reformers, such as they are, should get together. The movement for change is diffuse, supported by major newspapers and good-government organizations. It is not really supported by anyone who does business with the Legislature, who follow the maxim of not biting the hand that feeds you. Since government now intrudes in so many aspects of our lives, and the number of charitable, health, and educational institutions that receive public funds is so large, you will find early on that most of the potential base for reform has been bought off — not corruptly, but as part of the easy camaraderie that follows another maxim: One hand washes the other.

Legislative paralysis is not without a solution. People age and retire; others take their places, potentially with different attitudes.

Nobody wants their children to read bad things about them in the newspapers, so the press does have some influence in shaping public policy. But for things to change, more people will have to pay attention to what the Legislature is doing — and not doing.

And whatever power the leaders have over the members, they cannot print money, they cannot raise taxes again without encountering great public disapproval, they should not make New York State even less competitive with other states than it already is.

It is discouraging to read the report of the Brennan Center for Justice at NYU Law School (see the press release or the full report) that New York State has the worst legislature in the country. I think they exaggerate; whatever happened to Mississippi and Arkansas, which traditionally bring up the rear on these lists?

Whether or not we are the worst, the Empire State should not flounder close to the cellar in legislative achievement. We certainly are the first, or close to it, in how much our legislature costs. New York State is in urgent need of government reform, not radical or redistributionist, but based on the principle of participatory democracy and the consideration of bills on their merits, not on the basis of campaign contributions or the political strength or weakness of their sponsors.

How much lower will the New York State Legislature have to sink before there is sufficient public outcry in favor of on-time budgets, openness, productivity, and responsibility, and against padded staffs, double-billed expenses, lavish lulus, and the occasional randy employee?

This article, illustrated, appears on the editorial page of today's New York Sun.