NOTE: Print me out and take me to the beach, or wherever you have time to read me.

Henry J. Stern
June 22, 2007

Day One - Everything Changes
 
Day 173 - Sadly, not that much has changed.

The State Legislature adjourned yesterday, without agreement on many major issues.  They say they will return to Albany on July 16, but unless there is an actual attitude adjustment, progress is unlikely.
 
The first promise broken in Albany in January was the promised transparency, which was transparently unrealistic.  It vanished when Governor Spitzer, Majority Leader Bruno and Speaker Silver agreed on a small package of bills which had been held hostage last year in a divided legislature.  The bills, reforming workers' compensation and extending civil commitment for mentally ill sex offenders, were good will offerings by the legislative leaders to the new Governor.   Of course, the bills were in the public interest and should have been adopted years ago, but in Albany nothing is done except as a favor, and by common courtesy favors must be returned. Rule 28-C: “Don’t accept cigarettes in prison.” (You may be incurring an obligation you do not wish to meet.)

Historical note:  "Open covenants...openly arrived at..." was the first of President Woodrow Wilson's Fourteen Points, which he set forth on January 8, 1918, while World War I was raging.  The terms of the Treaty of Versailles, the peace conference that followed the war, were announced on May 7, 1919, after months of argument and negotiation between the winning powers. They were not arrived at openly.  It was difficult enough to reach agreement privately, and it would have been impossible to do so in public.  As it was, the treaty effectively died when Germany, under Hitler, defied its terms in 1935 by openly rearming.  No country would enforce the Treaty of Versailles.  In 1939, a far stronger Germany invaded Poland and began World War II. Any relevance today?
 
The Governor responded to the leaders' initial largesse by trying to manage the selection of a new Comptroller to replace the running mate he helped drive from office (who may have deserved his fate for other reasons).  The State Constitution specifically provides that, in the event of a vacancy in the office of Comptroller or Attorney General, it is to be filled by both houses of the Legislature, meeting jointly.  The Assembly chose one of their own, Thomas DiNapoli of Nassau, whom the governor called "thoroughly and totally unqualified."   Advantage, Silver and Bruno.

There is a reason why the Brennan Institute of Justice at New York University concluded on July 21, 2004, almost three years ago, that New York State has the most dysfunctional legislature in the United States.   Whether that is literally true or not - there might be some other state that is worse - it is beyond dispute that our legislature is close to the bottom. That is pathetic, because with our resources of money and talent, we should be among the best.  The situation is analogous to the New York Yankees being the worst team in both major leagues.
 
It is not that New York has the most corrupt people, although some elected officials have gone to jail and some others should, or that New York legislators are least competent, or the laziest, or the stupidest elected officials in the country.  The problem is that the combined effects of these factors---1) the top-heavy structure of tight leadership control; 2) the cocoon of life terms for the legislators, ending only in death, promotion or imprisonment; 3) the bipartisan gerrymandering of senate and assembly districts; 4) the custom of end-of-session passage of bills the members have not had the opportunity even to  read; 5) the travesty of one-house bills doomed from their inception but half adopted to give the illusion of accomplishment; 6) the effective exclusion of most legislators from meaningful participation in the adoption or amendment of bills; and 7) the expenditures of hundreds of millions of dollars in political pork, disproportionately awarded to pliant and complicit members ---  lead to a situation where legislative business is frequently unrelated to the public interest, and sometimes adverse to it.
 
That was a long sentence, but there are still more reasons why the governor and legislature have so far this year been relatively unproductive. A major problem is the ego of the participants, their ambitions and their motives. 
 
Governor Spitzer wants to be a national figure.  To do that he must earn a reputation outside New York State.  Since he is not a billionaire or an Olympian or a film or television star, he must rely on governmental achievements to win the recognition he seeks.  As luck would have it, many accomplishments will depend on legislative co-operation -- by both houses.  In general, it is in one's interest to work with other people, unless one has the intention and the power to destroy them.  If one fails in that effort, one may encounter extreme prejudice.
 
The governor was elected in 2006 by a margin of 1,614,356 votes over a qualified Republican candidate, John Faso. That was a decisive victory.  The result was due to public approval of Attorney General Spitzer, but the vote was also about President Bush, whose unpopularity hurt all Republican candidates.  There was also a demand for change after twelve years of rule by Republican Governor George Pataki and his cronies.  Pataki wisely declined to seek re-election but quixotically chose to seek the presidency, an effort he has since abandoned by popular demand.

More history:  Even the most popular public officials can wear out their welcome: Governor Cuomo, Mayor Koch and Senator D'Amato all served three terms but lost their bid for a fourth.  Both Mayor LaGuardia, in 1945, and Mayor Wagner, in 1965, stepped down after three terms, when they faced difficult campaigns.   Only Senator Strom Thurmond of South Carolina made it to the age of 100 while still in office.  He served 48 years in the Senate, starting six years after he ran for President.  Sooner or later, every Broadway show closes.
 
Rule 31, our grimmest, is an inscription we saw on a sundial in New Jersey:  "Every hour injures, the last one kills."  This is a rough translation of the words that appear on another sundial in a French churchyard: "Vulnerant omnia, ultima necat."   Similar sentiments are expressed more poetically in Ecclesiastes 3:1 et seq: "For everything there is a season..."
 
Back to Albany: Part of the legislature’s problem is the issue of linkage. This practice is often referred to as logrolling.  The idea is that I will vote for your bill if you vote for mine.  It is concisely expressed in Rule 21-O: "One hand washes the other."   The process has some rationale in terms of building majorities to pass legislation, but it is usually a method to garner support for public expenditures which are likely to be wasteful.   Even worse, however, is when it is used to block constructive legislation, holding bills hostage unless others agree to support a bill with which they do not agree.
 
That has been the case with campaign finance reforms which Governor Spitzer is said to have demanded.  The Republicans correctly see these 'reforms' as having a greater impact on their sources of financial support.  Senator Bruno today issued a strong, one might say vitriolic, statement on the issue. Mr. Spitzer was first elected Attorney General in 1998 (he ran and lost in 1994 with millions of dollars borrowed from his father).  The sources of Mr. Bruno’s income are now under investigation.  Mr. Silver’s mother lode is his private law firm.

New York State is not a place where significant campaigns have died for lack of financial support. There is so much political money here that it is exported for Senatorial and Congressional races in other states, not to mention the committees under Section 527 that are used to frustrate the McCain-Feingold law governing Federal campaigns. 
 
BTW, Writing about this subject is made more difficult by the fact that contradictory accounts of demands and negotiations appear in the press.  It is difficult for us to measure their accuracy. The likelihood is that Rule 30-T applies: "The truth lies somewhere in between." But that rule, true as it may be, is not dispositive in determining the facts.
 
It is alleged with apparent credibility that the Republicans reneged on badly-needed Wicks Law reform because their pork items were deleted from the budget.  It is an old saying that one man's pork is another man's bacon, and politicians are elected, in part, on their ability to bring home the bacon to their districts. 

The rationale for their obstruction is:  Why should I support a measure you want, even if it desirable, if at the same time your other hand is preventing me from doing what I have always done?   Each house can block any proposal by the other; mutual consent and identical language being required to send a bill to the governor for his signature or his veto.
 
Complicating the situation is the fact that the governor has made it his priority to depose Senator Bruno and secure Democratic control of the Senate. He began by luring Senator Michael Balboni into his administration as Deputy Secretary for Homeland Security.  Balboni, who was a capable Republican lawmaker from Long Island, has not been heard from since his appointment.  His vacant seat was filled in a special election by a Democrat, Craig Johnson, for whom Governor Spitzer campaigned and raised money.  The State of New York may or may not be more secure, but Senator Bruno is certainly less secure, thanks to this legitimate machination by Spitzer. After all, it was LBJ who lured Arthur J. Goldberg from the Supreme Court in 1965 so he could make room for his own lawyer, Abe Fortas.  Eliot learned from a master. 

New York is a blue state, but the Senate has been Republican for the last forty years in large part because of gerrymandering.  For example, a few years ago there were eight Republican Senate seats within New York City, while there was only one Republican seat (out of 65 or so) in the Assembly.  That was because each house draws its own district lines.  The Democrats have done exactly the same thing to give themselves a veto-proof Assembly.  

Nonpartisan redistricting is, in our judgment, the single most important reform that should be enacted.   It will not, however, be easy to achieve, in part because the Department of Justice, which has authority over large parts of New York City, supports racial gerrymandering to maximize the number of seats held by ethnic minorities, who are actually majorities in many communities. 

Another obstacle is the difficulty of finding truly impartial people, as even retired judges may have axes to grind, or minds that could be sharpened.  We have suggested that community board districts, which were drawn geographically in the 1950s and '60s, be the building blocks out of which political districts are formed in New York City.  So far the powers that be have expressed no interest in the plan, but that was predictable.

CORRECTION: In the last article, we suggested that Arnold Schwarzenegger could run for Vice President without the power of succession, since the Constitution prohibits anyone who is not native born from becoming President.  Two learned men, Joe Robins and Michael Schnall, wrote to inform us that the last sentence of the Twelfth Amendment, ratified in 1804, filled the loophole left by the founding fathers by providing that no one can serve as Vice President who is not qualified to be President.  We thank both of them for letting us know. Nonetheless, an article in the San Diego Union-Tribune, sent to us by Jerry Skurnik, discusses the possibility of the courts upholding a Schwarzenegger candidacy despite the Twelfth Amendment.

AMPLIFICATION: Governor Earl Warren of California lost for Vice President in 1948, but Senator Richard Nixon was elected Vice President in 1952 and re-elected in 1956.  Nixon was defeated for President in 1960 by JFK and defeated for Governor of California in 1962 by Pat Brown (father of Governor Jerry).  Nixon then said “You won’t have Nixon to kick around any more, because, gentleman, this is my last press conference.” 

He moved to New York City, where ambition recurred.  He was elected President in 1968 over Hubert Humphrey and re-elected in 1972 over George McGovern (49 states to Massachusetts and D.C.).  He returned to California prematurely in August 1974.  Ronald Reagan, former Governor of California, was elected President in 1980 and re-elected in 1984.   You can see that the Golden State has had more than its share of winners and losers.


#387  6.22.07  1996wds