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Issues to Watch in the 2020 Legislative Session in Albany

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(photo: governor's office)

The 2019 legislative session in Albany was, as Senate Majority Leader Andrea Stewart-Cousins described it, “[T]he most historic and productive legislative session in New York State history, period.” The Democratic-controlled Legislature notched up a long list of victories, including many progressive bills that had languished under prior Republican leadership in the state Senate. But there remained unfinished business, imperfect new laws, and pressing concerns that have carried forward and will define the legislative calendar in 2020, which comes with its own set of particular challenges, in part stemming from upcoming elections.

Among the issues the governor and Legislature are expected to confront are a $6.1 billion projected budget deficit, health care, marijuana legalization, criminal justice reforms, campaign finance issues, gig economy protections, and more. Other topics of interest will include the annual debate over education funding, whether to reform New York City’s specialized high school admissions and property tax system, and more.

Legislators are set to be in session in Albany on 57 days in 2020, four fewer days than in 2019, and have front-loaded the business of the two legislative chambers into January and February after consolidating the state and congressional primaries into one day in June. State primaries had been in September until the change.

As every two years, each seat of the state Legislature -- 150 in the Assembly and 63 in the Senate -- is on the ballot, and sitting legislators will have to balance official duties with the task of seeking reelection, especially those competing in tough primaries. Instead of working until mid- to late June, as is usual practice, the last day of the session will be June 2. Primaries are set for June 23.

That accelerated timeline will be kicked into high gear once Governor Andrew Cuomo unveils his agenda for the year at his State of the State speech in Albany on January 8. That will be around the same time that the legislative majorities begin meeting in Albany, establishing their priorities for the session, and, if last year is a guide, moving forward on some pieces of key legislation. Cuomo will also present his Executive Budget for fiscal year 2021 sometime in January, a plan that will merge policy and spending, and must address a massive budget deficit that is likely to dominant much of the session until when a new budget is due on April 1.

The governor has already unveiled several proposals from his new “Making Progress Happen” agenda, including banning gun licenses for those convicted of certain “serious offenses” in other states, banning single-use styrofoam containers, closing the “rape intoxication loophole,” mandating automatic manual recounts in close elections, and banning fentanyl analogs that contribute to the opioid crisis.

He also noted in a news conference at the end of the 2019 session in June a few items he hadn’t gotten across the finish line but would again pursue in 2020, including legalizing recreational marijuana, legalizing paid gestational surrogacy, and passing a prevailing wage law for construction projects that receive government subsidies. “I’m disappointed that surrogacy did not get done, and I will continue to fight for that. Legalization of marijuana. Prevailing wage. Those are really the issues that did not get done, and I will revisit all of them next year,” he said.

Below are some of the most important items that will be on the 2020 agenda in Albany, including those of particular interest to New York City. Other issues could crop up again depending on what Cuomo decides to do with hundreds of bills he has yet to sign or veto, decisions he must make by the end of the year. Those include, for example, legislation to legalize e-bikes and e-scooters.

A Massive Budget Gap
The most pressing and immediate concern for the governor and Legislature will be a $6.1 billion projected budget gap for the next fiscal year, stemming from a substantial growth of Medicaid costs.

Year after year, Cuomo has claimed to cap growth of the state budget at 2% annually, but has often only provided the appearance of doing so through creative maneuvers that include moving spending either off budget or pushing it to the next fiscal year, as exposed by Citizens Budget Commission. At the same time, the governor did not heed urgent calls from fiscal watchdogs to increase the state’s reserves while the economy was flourishing, instead continuing to pump money into education spending, his economic development programs, and other initiatives.

Cuomo is expected to show his plan for closing the budget deficit when he presents his spending plan in mid-January.

Assembly Speaker Carl Heastie suggested last week that the solution may be to raise taxes on the wealthy rather than cutting spending on programs, including health care, that benefit the most vulnerable New Yorkers. “This is gonna be a tough budget year…unless money’s gonna fall from the sky, you always have to try to do things,” Heastie told reporters. “So when there’s a concern about having enough money, the two options always are do you cut spending or do you raise revenue. For us in the Assembly, we always believe in raising revenue.”

There are a few proposals from this last session that could potentially be revived including a pied-à-terre tax on second homes worth more than $5 million in New York City and an expansion of the current “millionaires tax” that Heastie unsuccessfully sought this year. The Assembly’s Democratic majority has repeatedly sought to make the state’s tax structure more progressive, but Cuomo and Senate majorities, whether Republican or, in 2019, Democratic, have resisted.

Majority Leader Stewart-Cousins, when asked about the budget gap, said, “We will be spending time talking about that. Whatever happens, everybody is going to have to decide how to deal with the shortfall. We are obviously concerned. It is critical — our first fallback isn’t let’s raise taxes. We know how the burden of taxes on middle class and low-income New Yorkers is very difficult.”

She did, however, also say, “We have to be able to look at a myriad of possibilities.”

Cuomo is typically averse to raising income taxes (and has led the lowering of many rates), but has approved the regular extension of what was supposed to be a temporary “millionaires tax” implemented in the wake of the financial crisis at the end of last decade and has worked with the Legislature to institute a variety of new taxes and fees over the years. The Senate Democrats, keen on keeping and expanding their new majority, and rank-and-file legislators from both chambers may also balk at raising taxes in an election year. Identifying $6.1 billion to close the gap will be especially challenging without new revenue, however.

Citizens Budget Commission recently sent Cuomo and legislative leaders a letter suggesting a four-point strategy for finding recurring savings and closing the gap: reestablishing the Medicaid Redesign Team, which Cuomo first created in 2011, to find savings; sending enough education aid to needy districts to provide a sound basic education but otherwise limiting it elsewhere (the letter noted that the state sent $1.6 billion in school aid in the 2017-18 school year to wealthy districts that had sufficient resources to fund a sound basic education); reducing economic development spending; and reforming retiree health benefits.

Marijuana Legalization and Vaping Regulations
This year, the governor and Legislature couldn’t come to an agreement on full legalization of the adult use of marijuana and instead settled for decriminalizing the possession of small amounts of marijuana and expunging records of those convicted of such offenses.

Cuomo, who once called it a “gateway drug,” has already said legalizing marijuana is among his top priorities. In October, Cuomo and governors from neighboring states held a summit to coordinate regional policy on marijuana and vaping, and Cuomo this week announced the hire of Norman Birenbaum as Director of Cannabis Programs. Birenbaum was previously the implementation director for the Rhode Island Office of Cannabis Regulation.

“This is a very important topic and it's probably one of the most challenging issues that I know that I've had to address in the State of New York. It is complicated, it is controversial and it is consequential - and that is a very difficult and challenging combination,” Cuomo said at the summit.

While marijuana legalization may finally be realized next year, bills related to vaping are headed in the other direction. After a nationwide outbreak of vaping-related illnesses and a rising crisis of nicotine addiction among teenagers, the state imposed an emergency ban on flavored e-cigarettes and nicotine vaping liquids. Cuomo promised at the time that he would also propose legislation to ban deceptive marketing of e-cigarettes that targets teenagers.

Each year, some advocates, educators, and legislators call for a massive increase in state education funding and each year, Cuomo proposes something much smaller. When the state budget is agreed upon, Cuomo and the Legislature often meet in the middle. The state Board of Regents recently proposed a $2 billion increase for next year, which would bring total funding up to $29.9 billion. Last year, the Board had requested a $2.1 billion increase but Cuomo only proposed $1 billion in his executive budget. The Senate and Assembly sought a $1.6 billion increase but in the end, Cuomo’s number was approved.

Advocates and legislators have long argued that the state is failing to meet the requirements of the Campaign for Fiscal Equity court decision in 2006, which would require billions more in Foundation Aid to be sent to the poorest school districts. Cuomo, however, has maintained that the debt is paid and the court decision no longer applicable, and said that the formula being followed by the state, particularly with recent adjustments, provides exceptional funding to local school districts. Cuomo regularly cites the fact that New York spends far more per pupil than any state in the country. Last year he insisted on new reporting requirements to see if school districts are then sending appropriate sums to the poorest schools therein.

Cuomo and others, including budget watchdogs, have called for a reimagining of how the state doles out its education aid in order to focus aid where it is needed most, but the Legislature, especially representatives from wealthier areas, has balked.

And in 2019 the state opted not to lift or altogether eliminate a cap on the number of charter schools in New York City, even as the cap has been hit, making it an issue likely to come up again in 2020.

Criminal Justice Reform
This year, the state Legislature approved sweeping reforms to the state’s pretrial criminal justice system, including banning cash bail for misdemeanors and various non-violent felonies and instituting open file discovery on a fast timeline so prosecutors and law enforcement turn over evidence to an individual facing trial within a quicker, mandated period.

Though the reforms have faced a backlash from various quarters, with Republicans, police officials, and district attorneys sounding alarms, and in some cases fearmongering, about public safety, legislative leaders have given no indication that they intend to water down the legislation. Still, the discussion is likely to continue as the reforms are implemented.

At the same time, advocates are pushing for more reforms that will address currently incarcerated people and those recently released from jail.

For the New York Campaign for Alternatives to Isolated Confinement, the top priority is the Humane Alternatives to Long-Term (HALT) Solitary Confinement Act, which would limit the amount of time a prisoner can be kept in solitary confinement to 15 consecutive days along with other reforms to prison procedures. The bill failed this year as legislators instead compromised with the governor to institute administrative reforms. 

Advocates with the group Release Aging People in Prison have vowed to pursue a bill that would automatically place anyone who is 55 years old and has served 15 years in prison under consideration for parole.

DecrimNY, a coalition of current and former sex workers and other advocates, is pushing for the Stop Violence in the Sex Trades Act, which would fully decriminalize sex work and expunge records for those convicted under current law. They may face a tough battle, however, as a rival coalition, New Yorkers for the Equality Model, have opposed full decriminalization and instead are pushing to make the purchase of sex illegal while ending enforcement against workers, according to a Queens Daily Eagle report

Prevailing Wage
Among Cuomo’s end-of-session regrets was the failure of a prevailing wage bill that would have expanded the public works that qualify under the law in Long Island and upstate, while exempting New York City, which has its own prevailing wage law that was recently expanded. The bill was favored by building trade unions who are close allies of the governor though real estate developers, who have also been big contributors to his campaigns, opposed it. 

The governor blamed the state Assembly for the failure of the bill, vowing to take it up again next year. 

New York is one of only three states that do not allow paid gestational surrogacy, and the governor’s attempt to change that law this year did not succeed after passing the Senate but failing in the Assembly.

The bill under consideration would have allowed gay and infertile couples to enter into a contract with a surrogate, and Cuomo saw it as an important measure for the LGBTQ community. It was opposed, however, by some advocates and legislators who raised concerns about exploitation of potential surrogates, particularly from low-income backgrounds.

As with marijuana legalization and the prevailing wage bill, Cuomo pledged to bring the paid surrogacy bill back to the table next year.

Gig Economy Worker Protections
Cuomo mentioned protections for gig economy workers in his first “100 days agenda” for 2019 but did not follow through with any legislative proposals. Since then, there has been increased attention on the sector with freelancers and gig workers increasingly contributing to economic activity across the state.

There have been several bills proposed by lawmakers that would tackle issues like wage theft or create portable benefits but none have seen movement. The State Assembly also held a hearing on December 5 on labor protections for gig economy workers, and seem to be gearing up to pursue legislation in the upcoming session. (New York City passed its own set of gig worker protections in 2017.)

Campaign Finance, Voting and Election Reforms
When the Legislature and governor couldn’t come to a consensus on creating a system of public financing for state elections, they decided to hand the task to a nine-member commission. That commission issued recommendations last month that will become law unless the Legislature returns to amend them before December 22, a contingency that appears exceedingly unlikely. The panel created a new public matching funds system for state elections, lowered individual campaign contribution limits, outlined a new state agency to administer the system, and perhaps most controversially, raised the bar for political parties to gain and keep ballot access.

There has been praise and criticism of the commission’s recommendations and government reform advocates have said the Legislature should reduce the contribution limits even further – for instance, under the planned system an individual can still donate $18,000 in total to a statewide candidate, compared to a limit of only $5,600 for a presidential candidate under federal law. Minor parties have even sued to prevent the new ballot thresholds from taking effect. It’s currently unclear if the Legislature will agree to give the new system a second look, which it could choose to do during the upcoming legislative session even if the new system becomes law this month.

After passing several voting reforms – including early voting, consolidating the state and federal primaries and universal transfer of registration – the Legislature also initiated an amendment to the state constitution to provide for same-day voter registration and no-excuse absentee ballots by mail. Both of those will have to be voted through again before being presented to voters in a ballot referendum. With full Democratic control, it’s almost a foregone conclusion that the measures will pass.

Automatic voter registration passed both houses of the Legislature last year, but then had to be recalled over issues with the bill language that coincided with the new driver’s licenses for all law. Legislative leaders said at the end of session, when recalling the bill, that they would fix it and pass it again in 2020, and that the error wouldn’t impact the outcome because it wasn’t to go into effect until 2021 anyway.

Cuomo may also resuscitate a proposal he made last year to make Election Day a state holiday, and there is likely to be additional conversation around voting rights for those who’ve spent time in prison.

Other Reform Issues
There is likely to be continued conversation in 2020 about transparency in economic development spending, and perhaps significant reform to how economic development programming works in New York; reforming or replacing the much-maligned state government ethics watchdog, the Joint Commission on Public Ethics (JCOPE); revisiting planned pay raises and a cap on outside income for legislators after a prior version, created by an appointed commission, was struck down in court; whether the state Comptroller should divest public pension funds from fossil fuel companies; among other topics that related to government ethics, transparency, management, and process.

New York Health Act
New York’s own version of a universal single-payer health care system, the New York Health Act, has been approved by the Assembly in the past but has failed to pass the Senate. Yet when Democrats had control of both chambers for the first time in a decade this year, the legislation was not on the agenda in either house. The sponsors have held hearings and are recalibrating the bill, and it’s likely to be front of mind for many legislators, particularly with health care one of the top issues in the presidential election set for next year, but it appears unlikely there will be the appetite for taking it up in Albany. 

Last month, the state Legislature held a joint hearing in Kingston, the last of a series of hearings across the state to solicit testimony on the proposal. Critics, which include Governor Cuomo, say implementing the bill would require a too-massive overhaul of the state’s tax, health care, and insurance systems. Labor unions have also opposed the bill, saying that their members enjoy health plans they do not want to give up.

Other New York City Concerns
Mayor Bill de Blasio has lingering stated priorities that he has not been able to get through the state Legislature and he may make yet another attempt at next year. De Blasio has called for reforming Section 50-a of the state civil rights law, which currently prohibits the city from disclosing disciplinary records of police officers to the public, and either eliminating the Specialized High School Admissions Test as the sole criteria for acceptance into the city’s top three specialized high schools, which are woefully unrepresentative of the city’s black and Latino students.

After a proposal he put forth to scrap the SHSAT and move toward a different admissions system went nowhere this year, de Blasio said he is starting over.

Meanwhile, de Blasio has also called for legalizing adult marijuana use and issued his recommendations for what the system should look like.

As the year begins, de Blasio will have two of his four seats on the MTA Board vacant. His nominations to the governor must then be presented to the state Senate for approval.

And the mayor has repeatedly pushed for more taxes on the wealthy for various purposes, from funding mass transit to affordable housing for seniors. It’s unclear if he may have a new wish list in January, though given the state budget deficit the mayor may find himself mostly playing defense given that the city’s coffers have been overflowing and Governor Cuomo has repeatedly sought to raid them.

by Samar Khurshid, senior reporter, Gotham Gazette

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