When the State Legislature convenes for a new session this month, it
is likely to face the task of determining how much money will be spent
on public schools across the state, how to reform the state’s lobbying
laws, whether to regulate more closely the plethora of public
authorities, and many other legislative issues of concern to New
But in order to tackle these issues properly, lawmakers in Albany
will also have to consider changing the way they do business to make the
legislative process more effective, more transparent, and more
democratic. As New Yorkers, it is our task to ensure that our
representatives make a New Year’s resolution to enact meaningful
improvements in the legislative rules.
Specifically, each chamber - the Senate and the Assembly - will vote
separately to adopt new rules that govern issues such as how committees
function or how legislators vote.
Good government groups have long been interested in these issues.
But until recently the Brennan Center, and other groups like us, have
focused primarily on reforms that were less attainable than rules
reforms: constitutional changes, redistricting, and campaign financing,
to name a few.
While critically important, those reforms require legislation to be
passed (and, in the case of constitutional changes, repeated legislative
action). By contrast, rules changes require less sweeping action. In
the immediate future, therefore, rules reform is our best hope for
substantive changes in the legislative process.
Rules reform has long been seen as a "good government" issue only of
interest to those few advocates concerned with questions of process,
rather than with bread-and-butter issues like education or jobs. But,
as the last few months have demonstrated, voters do in fact care about
how and whether their government works.
EVALUATION OF ALBANY: WHICH AREAS NEED REFORM?
The Brennan Center chose to focus on the legislative process in
Albany as the result of a rare pattern we noticed in our own work. In
discussions with people and organizations across New York State -
regardless of which area they were working in or what their ideological
bent was - virtually everyone agreed that the current legislative
process was standing in the way of real progress in pursuing their own
policy agendas whatever they might be.
So we set out on an 18-month research project to understand precisely
what, if anything, was "dysfunctional" about New York’s legislative
process and to develop recommendations for reform. We interviewed
sitting members of the legislature and scores of staffers; we reviewed
the transcripts of floor debates, the committee reports, and the
committee votes; and we investigated the history of the legislative
process over the last century. We also looked at the rules in New York
and in every state across the nation, in each chamber, and interviewed
people in each state about certain aspects of each state’s legislative
process. The result was a report entitled "The New York State
Legislative Process: An Evaluation and Blueprint for Reform."
That report identified rules changes that together would make the New
York State Legislature more representative, more deliberative, more
accessible and accountable to the public, and more efficient.
Specifically, our research allowed us to identify at least four major
areas in need of reform:
In most legislatures, of course, committees are where the action is.
It is in committees where momentum develops for a bill, and this
momentum - and not just the will of the powers that be - decide whether
a piece of legislation will make it to the floor: Has enough momentum
developed through public hearings, though press attention for a bill
etc., for it to go to the floor? Or is the issue not ripe yet?
These sorts of questions do not often arise in New York, because
committees rarely perform that function. There is a remarkable lack of
sustained discussion on bills in committee in New York’s State
Legislature, particularly in the Senate. True, there are public
hearings on major issues - though even these are more rare than they
should be. But on specific bills there are virtually never hearings -
they were held for only 0.5 percent of major bills passed by the
Assembly and 0.7 percent of those passed by the Senate from 1997 through
2001. There is little focus on parsing language and on determining from
testimony and research as a committee what is the best solution to a
Committees in New York do not produce reports on each piece of
legislation. This not only hinders consideration of a bill when and if
it reaches the floor; it also robs state courts of invaluable
legislative history to interpret laws that are passed.
In the Senate, committee members can (and do) cast their votes on
bills by proxy given to the committee chair, i.e., they can indicate how
they wish to vote, but are often not even in the room to debate the bill
or cast their vote.
In short, committees do not provide the incubation for a bill,
opportunities for public and member input into a bill, or the public
momentum for a bill that they should.
The sheer number of committee assignments may explain part of this
failure: in New York, the number of committees to which each member is
assigned dwarfs those of any other state. The average in the Senate is
eight committees per member; in the Assembly it is three to four per
member. There is simply no way for legislators to perform the work they
should if they are required to serve on so many committees.
Getting a Bill Out of Committee to the Floor
Even when a bill has the support of a majority of legislators within
a chamber, New York’s legislature makes it more difficult than any other
legislature in the country to discharge a bill from a committee for the
full chamber to consider. Discharge motions are intended to allow
supporters of a bill to obtain consideration by the full chamber despite
the opposition or inaction of the committee to which the bill was
referred or the chair of that committee. New York’s legislature places
more restrictions than any other state legislature on motions to
discharge a bill from a committee to the floor for a vote.
In addition, New York allows the majority leader and speaker,
directly or indirectly, complete control over the legislative calendars
to determine whether and when a bill that has been reported out of a
committee will be considered by the full Senate or Assembly. The New
York Senate and Assembly are two of only three chambers nationwide (out
of 99) in which the leader of the chamber determines the order of bills
placed on the second reading and special orders calendars; they are also
two of only five chambers in which the leader determines the order of
bills placed on the third reading calendar.
What are the results of this control? From 1997 through 2001, the
Senate voted on 7,109 bills and, from 1997 through 1999, the Assembly
voted on 4,365 bills. Not a single bill that reached the floor for a
vote was rejected in either chamber. When a bill is brought up for a
vote, there is no suspense. Many bills that should be debated and
considered do not make it anywhere near the floor.
In both chambers of the state legislature a member’s vote is
automatically counted as a "yes" vote the minute he or she checks in
that morning. Members do not have to be in their seats to vote in the
affirmative on any bill.
This may not be as great a substantive problem as some of the others
mentioned here. But it profoundly undermines the public’s confidence in
So-called absentee voting is rare across the country; it offends a
citizen’s sense of what a legislator should be doing. People can differ
as to its real substantive import, but it certainly offends many
citizens. It should be addressed for that reason alone.
We also think it appropriate to focus on the "message of necessity."
This device allows the legislative leaders to circumvent the
constitutionally required three-day waiting period before a bill can be
voted on. The constitutional intent was to use this tool only in cases
of true emergency for swift action. But we found that over a quarter of
major pieces of legislation are passed with messages of necessity on
average each year. If you cannot wait three days to pass a bill, there
should be a compelling justification for it. Besides the obvious need
for substantive review by members, a bill needs to be checked for
typographical errors that can make a big difference once a bill becomes
law. Messages of necessity should be reserved for emergencies.
Conference committees are widely used in the U.S. Congress and in
other state legislatures to reconcile differences between the bills
passed by the two houses of a legislature to produce a single law that
can be passed by both. In New York, however, conference committees have
been used only rarely since the first decades of the 20th century.
Instead, to pass a bill into law, one chamber must move to substitute
the other chamber’s version of the bill for its own, with the leaders of
the two chambers working out any differences directly.
As a result, New York does not have any established mechanism to
prevent legislative gridlock if the speaker and majority leader cannot
resolve their differences directly in closed-door negotiations. The
result, in too many cases, is a failure to pass even legislation that
has garnered overwhelming support among legislators and the public. In
addition, New York does not obtain the benefits of a conference
committee’s review and airing for public scrutiny of the final version
of a bill before it is voted into law.
AN OPPORTUNITY FOR CHANGE
The dysfunction in Albany has caused New Yorkers from all over the
state, from all lines of work, and from different ideological
perspectives, to come together in agreement. It is very rare to reach
such a consensus on a problem, and it has allowed people across the
state to reach a growing consensus on the solution.
We have tried to form a broad-based coalition of groups, spanning
from business groups to environmentalists, and including all the other
groups and communities that focus on work in Albany. Many do not
necessarily have the resources to focus on process issues, but all are
very much affected by them. Given the opportunity, they have agreed to
mobilize to advocate for rules reform.
When groups from such different perspectives agree on an issue in
such great detail, it makes for a momentous opportunity in New York’s
history to reform our government. We have to take advantage of this
momentum to give New Yorkers the legislature they deserve.
Jeremy Creelan is the deputy director of the Democracy
Program at the Brennan Center for Justice.
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