Cuomo had linked the EITC & DREAM Act (photo: Kevin P. Coughlin/Office of the Governor)
Pop quiz: what do the DNA of felons, casinos, teacher performance, the drawing of legislative district lines, and pension reform have to do with one another? This isn't a trick question - in Albany all of these issues were crammed together by Gov. Andrew Cuomo and legislative leaders in 2012 to form the traditional Albany deal that has come to be known as "The Big Ugly." The only thing that stood out about it was that the 2012 big ugly was achieved in March, three months earlier than the traditional end-of-legislative-session deal.
With just a few weeks left in the 2015 legislative session, there's much talk of a big ugly brewing in the Albany trenches where lawmakers are hunkering down after the majority leader of each house has been arrested on corruption charges this year.
What makes a big ugly? For a proper Albany-style "Big Ugly" legislators must lash together a series of bills that are important to individual conferences but would not pass without being directly linked. It's about taking hostages, weighing risk versus reward, and giving in order to get.
The bills must be negotiated and tweaked behind closed doors by legislative leaders, and usually done so while running up against some kind of deadline. Finally, for authenticity, the deal should be served up to rank-and-file legislators late at night, or early in the morning after a marathon session with only a few hours or minutes for them to read the legislation.
The untrained observer might think 2015 presents itself as ripe for a big ugly: rent laws and mayoral control of schools are set to expire and Democrats want to see both policies renewed and possibly strengthened. Meanwhile, Republicans are interested in renewing the sunsetting 421-a tax break for developers, making the property tax cap permanent and lifting the cap on charter schools.
In a normal year a big ugly would be right around the corner. But legislators and observers agree that 2015 is no normal year in the capital, and that increased scrutiny by both the public and US Attorney Preet Bharara may stymie any grand bargain.
But, the fact is there was no major big ugly deal in 2013 or 2014. Is the big ugly dying?
Normal is, of course, a relative term, especially in Albany, a place where legislative dynamics have an increasing tendency to be shattered by powerplays and scandal. But this year, with the arrests of former Assembly Speaker Sheldon Silver and former Senate Majority Leader Dean Skelos, it is safe to say that things are unusually aberrant, even for New York. The most telling sign in the Legislature that things have changed is that with fewer than a dozen session days remaining and a host of issues to deal with, legislative leaders appear almost hesitant to cobble together an end-of-session deal.
The Daily News reported this week that Senate Republicans who would normally be chomping at the bit to win concessions from Democrats to renew the rent laws and mayoral control of schools are afraid to touch the rent laws due to the recent indictments of Silver and Skelos, both of which involve the 421-a tax credit for developers and the state's rent laws. Bharara also has the help of a cooperating witness who works for the major real estate firm - Glenwood Management - that has been the biggest political donor in Albany, giving a millions to Cuomo and legislative leaders over the years.
"In Albany the governor drives the train," said Blair Horner of the New York Public Interest Research Group (NYPIRG). "It may be the governor is less willing to hash out deals with legislative leaders," added Horner, who noted that Albany's "Big Ugly" used to be the budget, which under Govs. Mario Cuomo and George Pataki sometimes wasn't delivered until August - months after the April 1 deadline.
Former Assembly Member Richard Brodsky agrees that more is now addressed in the budget.
"This governor and his predecessors have tried to pound the Legislature into submission during the budget process," said Brodsky, who pointed out the Legislature can't amend the governor's budget program bills, forcing them to drive a hard bargain with the governor, deliver a late budget, or accept his priorities.
Increasingly over the last few years the Legislature appears to slow to a crawl after the budget is passed. Lawmakers leave Albany for several weeks post-budget and legislative momentum on major issues simply comes to a halt. Little gets picked back up.
"As time goes on there seems to be less interest in getting non-budget things done," said Horner. "If you want to get big policy issues addressed you have to give yourself a running start, hold hearings on the issues throughout the year. You can't just disappear to Florida for weeks in April and expect things to get done."
Lawrence Norden of The Brennan Center said that a lack of legislative momentum could stem from Albany's secretive bargaining process. "Albany does not function as a civic lesson ideal," said Norden. "There are other states with different processes where legislation is considered in public hearings and bills get markups and sponsors, committees and bills can be a force of their own."
In Albany bills live and die by the hands of the of the governor and the majority leaders.
Horner has a number of theories about why we've seen fewer mega deals in the last few years.
"Some of it could be that the issues are gobbled up in the budget process," he said. "Some of it could be due to lowered expectations that the state government is in the business of solving problems," Horner continued. "There are really only a few people at the top making major decisions that impact lots of people and there is only so much bandwidth."
Brodsky paints a different picture. He suggests end-of-session deals are not dictated by the leadership but instead are the product of session-long negotiations and the input of the rank-and-file legislators. "The end of session is much more about 'small d' democratic agreements. These year-end deals are the consequence of six months of pounding your head against the wall," said Brodsky. "If they don't happen or the deal breaks down it is because the votes aren't there. You shouldn't confuse any particular outcome with what is going on in Albany but on the issues that are pounded out over a long course of time on the leadership and conference level."
Asked in April about whether negotiations over renewal of mayoral control had started yet, Sen. Diane Savino told Gotham Gazette "No. There is always time in Albany."
Horner suggests that more is at play than just the legislative merit of the issues on the table. He said that in recent years Senate Republicans have developed a "bunker mentality" where it is more important not to move legislation than it is to come to big deals. Senate Republicans faced major backlash on some larger pieces of legislation they negotiated with Cuomo like the SAFE Act and marriage equality. They also have narrow control of their chamber and are extremely sensitive to how issues play in individual districts.
"Success for some lawmakers is more about raising than about solving problems. And a lot of the lobbies that donate prefer the status quo, they aren't interested in legislation of any kind," said Horner.
Norden said that one contributing factor could be a natural decline of the governor's power. "The governor is often the driver of policy and generally governors lose power after the first couple of years," said Norden.
In 2011, his first year as governor, Cuomo was able to deliver a tax cap and an extension of the rent laws while raising the tuition at state schools in the year-end deal. He also delivered marriage equality.
In 2012, Cuomo and the Legislature pulled together the far-ranging deal that included a DNA database for felons, an unpopular agreement on redistricting, and a deal on casinos, in March.
But the governor was unable to move lawmakers on ethics in 2013 and the Legislature was particularly recalcitrant in 2014, not particularly surprising given that its members and Cuomo faced reelection. Cuomo was also reeling from backlash over his closing the Moreland Commission as part of a budget deal.
If the end-of-session big ugly truly is dying, Horner and Norden won't shed any tears as they both say the formula hurts transparency and leads to bad bills. But, they aren't convinced the process is improving. "I don't know that this really helps transparency," said Norden of a lack of a major end-of-session package. "It looks like deals are getting done elsewhere."
While 2013 and 2014 may not have produced big ugly-type deals on the scale of 2012's, the end of both sessions were still home to a torrent of legislative activity. Suddenly at the last minute, the legislative chambers switched from passing six or seven bills a day, honoring basketball teams, and creating new vanity license plates to pushing out hundreds of bills in a week. Some of the bills are destined to fail as they lack sponsors in both houses, but Albany has a knack for waiting to the last second regardless if deals are reached.
This year it appears that if any deal comes on rent laws, 421-a, and mayoral control of schools it will feature extenders without major tweaks to the laws. Brodsky said that big uglies, like any major compromises, hinge on the details. He said that in 2013 Cuomo was focused on passing ethics reform and legislators are aware that issue does not poll highly with voters. He points to a recent Siena Poll that shows voters prioritizing jobs and education over ethics reform even while 90 percent of voters surveyed saying that corruption is a major problem in Albany.
"The people of this state are properly focused on what the Legislature does that affects their lives. While the editorial boards are focused on the scandals. That focus is not mirrored by what the public wants out of Albany," said Brodsky. "That is good in that the people are focused on what the Legislature does that impacts them but bad in that the pressure on [lawmakers] to amend their ways is diminished."
Brodsky said he thinks that dynamic should lead to a deal this year because the focus is on issues, like education and housing, that actually impact voters and there is a certain parallel to what is at stake."There is a natural symmetry between 421-a and the rent laws," said Brodsky. "The Assembly wants to strengthen the rent laws and the Senate wants to extend 421-a. The governor appears to be siding with the Senate. No one wants to leave and let them expire. At the worst you are going to get a straight extension of both because no one will have to change their position."
by David King, Albany editor, Gotham Gazette