HOW THE NEW YORK STATE LEGISLATURE
COULD, AND SHOULD, WORK

And What You Can Do to Make it Happen

The New York State Legislature has now been identified by all observers, including many of the legislators themselves, as a dysfunctional organization. Unable to pass a budget on time, unable to pass other significant legislation at all, it somehow manages to do deals that benefit powerful interests instantly, often in the middle of the night, with no debate and with virtually no opposition. Attempts by the legislature to hold itself hostage - including deferring their salaries until a budget passes - have failed. Other old ideas - an independent office to estimate revenues for example - fail to solve the real problem. At this point, no one seems able to imagine a way forward.

But the New York State Legislature can be transformed from a national disgrace and an embarrassment into a respected national model, one worthy of the state in which it sits, if three key problems are solved:

Significant legislation cannot be passed without the agreement of the Governor, the Speaker of the New York State Assembly, the Majority Leader of the New York State Senate, the majority of the Democrats in the State Assembly, and the majority of the Republicans in the State Senate. Each of these is kept in office by powerful, politically active interests who are primarily concerned with maintaining their own benefits and prerogatives. Legislators dare not agree to any legislation in which any of their backers would, rightly or wrongly, lose out. So they hold out for an agreement in which the other side’s backers are sacrificed, before agreeing to keep things as they are. The easiest solution, often the only solution, is a non-decision to do nothing.

The need for universal agreement means that only legislation advanced by powerful special interests may move forward. The scope of such legislation is generally narrow, in order to avoid opposition from other powerful interests that have effective vetoes. Even so, the full implications of such deals are never disclosed. Instead, legislation is passed without debate and analysis. The cost to others comes out later, a cost which is far greater when all the deals are added together than it is for any one deal by itself. As a result, the state statute book is a mess of contradictory laws, and the public bureaucracy is a mess of agencies, boards and public authorities with overlapping jurisdictions. The state tax code is just as bad. If New York’s state government didn’t already exist, no one would dare to suggest it.

The vast majority of New Yorkers do not benefit from existing arrangements in Albany, but legislators have no incentive to change them, and little fear of being defeated for re-election. That is because vast majority of New Yorkers do not make campaign contributions, do not vote in party primaries and - based on national or cultural issues - are not willing to vote for candidates of the other major party. Meanwhile, the narrow interests that benefit from existing arrangements do make campaign contributions and do vote in primaries, and thus make it impossible for reform candidates to win against incumbents. So on Election Day, when everyone shows up, there is no real.

I propose the following solutions:

1. Begin the legislative process with a comprehensive repeal of all existing state laws and administrative regulations in a general category, effective at some point in the future. End it, if necessary, with a referendum.

Many years ago, the State of Michigan had a school finance system that, though not nearly as unfair as New York State’s, everyone recognized to be inequitable. Yet Michigan’s state legislature was never able to reform it because, as in New York, powerful interests benefited from the system as it was, and ideological divisions prevented the legislature from reaching a consensus on its replacement. So a school finance system that everyone agreed was bad remained in place years after year.

Finally, the Michigan legislature and Governor took a radical step. They passed a law repealing the existing system in its entirety - effective a year in the future - and appointed a commission to collect the facts and design a replacement. The repeal took the home field advantage away from the beneficiaries of the existing system, since that system would no longer remain in place if nothing happened. In effect, the comprehensive repeal eliminated the possibility of making a "non-decision" or doing a narrow deal, while the commission ensured that the information on which to base a real decision would be widely available.

As the deadline approached, the legislature still could not agree on how the new school finance system should work. With the existing system about to disappear, however, something had to happen. In the end, therefore, two competing plans - each internally consistent and workable -- were set before the voters in a referendum. The people served as the final arbiter, and voted the new school finance system in place.

That is how the New York State Legislature ought to work all the time.

For example, the state legislature cannot repeal the Rockefeller Drug Laws, because it cannot agree on what should replace them. So it should repeal all the drug laws, the alcohol laws, the cigarette laws, the prostitution laws, the gambling laws, and every law falling under the general category "Restrictions on Self-Destructive Behavior," effective at least 18 months in the future. It should charge public employees with collecting facts related to the topic: the way such behavior is restricted in other states and other countries, the history of such restrictions, and the effect of such behaviors on personal health, performance at work, learning at school, and family members. It should appoint a joint legislative committee to review the findings, hold public hearings, and design one or more comprehensive replacements. After due consideration, a comprehensive overhaul may be enacted. But if Governor, State Senate, and State Assembly could not agree before the deadline, each of their alternatives would be submitted to the voters, who would choose among them. Gridlock would be eliminated.

The New York State Constitution would have to be modified to put such a process in place. The state government would be authorized to declare its intention to embark on a comprehensive reform by passing a comprehensive repeal of an entire category of state law, effective on January 1st at least 18 months in the future. When that occurred, if replacement legislation were not approved by the prior June 30th, any replacement legislation passed independently by either the State Assembly or the State Senate, or proposed by the Governor, would be submitted to the voters on Election Day. The State Court of Appeals would be required to review the constitutionality of the options before they were placed on the ballot. By choosing among the alternatives in a referendum, the voters would enact state laws to replace those already scheduled to expire.

2. Require both the State Assembly and State Senate to pass their own independent budgets by April 1. If the State Assembly, State Senate and Governor cannot agree to a budget by June 1, a new budget should automatically take effect -- using the provision from the budget proposal that would generate the most revenue in each category, and authorize the least expenditure in each category.

As if to mock my proposal to end gridlock on other legislation, the state’s budget is comprehensive, and is automatically repealed at the end of each fiscal year. Yet this has not prevented the New York State Legislature from making a non-decision to do nothing for months at a time, and then doing a middle of the night deal, without consideration or debate, to keep the fiscal priorities as they are.

That is because if Governor, State Senate and State Assembly cannot agree, a new budget cannot be passed, so each has an incentive to hold out to protect the interests that fund them, and to deflect the anger of those who are sacrificed to pay for the privileges of those interests. Budget gridlock can only be eliminated if something happens automatically if the three parties cannot agree. The question is what that something should be.

The state legislature’s current proposal is to allow spending to continue at the previous year’s level until a new state budget is adopted, except in a few categories such as debt service and pension contributions. One can readily see how this proposal would be a disaster for those who are currently disadvantaged by state policy, and those who expect to be living in the state 20 years from now. If a budget were never formally adopted, a real possibility, the winners would continue to win and losers would continue to lose. And if unsustainable budgets were adopted in boom years, to allocate the benefits, but existing tax and spending levels continued in recessions, under a contingency budget, the state would fall deeper and deeper into debt.

Moreover, the legislature’s current contingency budget proposal, if enacted into the state constitution, could be used to contradict other constitutional requirements, including the requirement that the state balance its budget, and the requirement that it provide a sound basic education for all the children of the state. It would provide a constitutional mandate for continued irresponsibility. If New York State is to ever actually adopt a budget again, the contingency budget enacted in the absence of agreement would have to be far more painful to the powers that be.

First and foremost, to begin the budget process, the public should be told the truth about the state’s existing fiscal situation, and its tax and spending priorities relative to other states. The State Comptroller should publish and make readily available a comprehensive state budget spreadsheet. The rows would be revenue and expenditure categories at different levels of detail, from summary (state school aid) to particular (state school aid by school district). The columns would be:

The Governor’s budget proposal, when made, should be added to the spreadsheet as an additional column.

One of the strangest aspects of New York’s political culture is that is considered a shocking violation of prevailing norms if the State Assembly, State Senate, or City Council pass a budget on their own, prior to cutting a deal with the Mayor or Governor. The Mayor and Governor are required to put their cards on the table, and are expected to propose all the necessary choices and a few unnecessary ones. The legislative bodies then eliminate the unnecessary choices, claim "victory" in their "fight for the people" by restoring a few budget cuts, and never accept any responsibility for making choices themselves. The problem isn’t that the budget is decided by three men in a room. The problem is what happens before the three men go into the room. Nothing.

This feckless process is well suited to feckless politicians, and must be ended. Instead, each house of the state legislature should be required to pass their own budget by April 1, and each legislator should have their salaries and reimbursements reduced (not deferred) by $1,000 for each day that a given house fails to do so. The budget passed by the State Senate, and the budget passed by the State Assembly, should then be added as two additional columns in the State Comptroller’s spreadsheet.

Under this proposal, it is the State Comptroller who would prepare the contingency budget. That budget would be designed to benefit those whom the Governor and State Legislature have proven to care the least about - future state residents - and harm those who they most fear - current voters and campaign contributors - by combining the highest possible taxes and fees with the lowest possible spending. The Comptroller’s budget would include the provision from the one of the three budgets that would generate the highest revenues in a subcategory. If one party proposed a higher income tax rate, and another party proposed fewer income tax deductions, the Comptroller’s budget would include both the highest rate and the fewest deductions. The Comptroller’s budget would also include the provision from the one of the three budgets that would generate the lowest expenditure in a subcategory. If one party proposed a lower level of some public benefit, and another party proposed more limited eligibility, the Comptroller’s budget would include both the smallest benefit and the most restricted eligibility.

The Comptroller would have the constitutional authority to dismiss ploys, such as a budget provision that did not fund debt service or constitutionally required spending, or one that increased a tax or reduced a broad category of spending by more than 20 percent in the absence of a budget agreement. But otherwise, the "Comptroller’s Budget" would actually be a budget produced independently by the independent actions of the Governor and the two houses of the State Legislature, with one of the three identified as being responsible for each and every line.

After the Comptroller’s budget was released, say on May 1st, the Governor and Legislature would have a month to reach a budget agreement. During that month, the branch of government that proposed the highest revenues in a category, or the lowest expenditures in a category, would be free to moderate the portions of the budget they were responsible for, as long as they remained the branch with the lowest expenditures or highest revenues, and as long as the budget remained balanced or in surplus. The three branches could negotiate and pass a budget, and/or continue to modify the State Comptroller’s budget by acting on their own. If a new budget were not enacted by June 1st, the Comptroller’s budget would take effect, and public agencies and local governments would be required to comply with it.

Even then, of course the Governor and State Legislature could enact modifications to that budget at any time, by mutual agreement. And they would have every reason to want to do so, since the Governor, State Senate and State Assembly would be unlikely to include each other’s pork and special tax deals in their independently enacted budgets. For the majority of New Yorkers and future New Yorkers, on the other hand, a contingency budget enacted as described could be the best possible outcome. So if most future budgets were in fact created by the independent actions of the Governor and the two houses of the legislature, rather than by an agreement between them, the state could be better off than it is today.

3. In legislative districts where one political party accounts for more than 65 percent of registered voters who are in political parties, liberalize the rules for getting on the ballot as an independent candidate.

You may find the idea of our state legislators carefully considering all the facts related to an area of public policy, debating the issues in an open forum, soliciting views, enacting fair-minded comprehensive legislation, and taking responsibility for it, to be an attractive possibility. But the question is, why should they? And if they won’t, what are we going to do about it? We aren’t going to vote them out unless there is an alternative candidate to vote for, and there usually isn’t.

Many journalists and good government groups have identified gerrymandering as the culprit. If electoral districts were drawn more fairly, they believe, those districts would include a relatively equal number of Republicans and Democrats, and if incumbent state legislators were not responsive to at least the swing voters in their districts, they would risk losing re-election to a candidate from the other major party. Their solution is to have an objective commission, rather than the state legislature, oversee redistricting, in order to eliminate gerrymandering and create competition for office between the two major parties.

There are two problems with that solution. First, Republicans and Democrats predominate not in small pockets within communities, but over large areas of the state. If there were no gerrymandering there would be more competitive districts, but not that many more. Indeed, creating a legislative district that included both my home in the center of Brooklyn and a reasonably large share of Republicans would require an impressive gerrymander indeed. Second, a district in which one major party predominates is also a district in which a high share of voters is represented by someone who, at least theoretically, shares their point of view. That is not a bad thing. A better solution would be to create competition for office among those who, generally, have the same point of view.

At one time there may have been competition between factions within each major party, and thus competitive primaries, but that seems to be a thing of the past. Today’s major parties are about self-interest, not ideology, and the lobbyists who really call the shots back the incumbents as long as the vote the right way. A primary victory by a challenger over an incumbent is as rare as a victory by the other major party in a gerrymandered district. And in any event, having the election decided - in effect -- in the primary disenfranchises all those voters who are not registered members of the majority party. Their votes, and their concerns, no longer matter.

Non-partisan elections, which raise the possibility of (for example) a Democratic challenger on the ballot against a Democratic incumbent in a Democratic district in November, would be a better solution. Such elections would allow Democratic challengers who appealed to independents and Republicans, and to Democrats who were not in on some deal, to compete against the machine. In Republican-majority districts, non-partisan elections could similarly lead to two Republicans running against each other. Both major parties could be revitalized. No wonder the machines - Republicans and Democrats alike - and those who benefit from them reacted so virulently when non-partisan elections were proposed in New York City.

If nothing else, the New York State Election Law should be modified to make it easier for independent candidates to get on the ballot in districts with lopsided enrollment. Currently, a major party candidate must collect no more than 500 signatures to get on a primary ballot for State Assembly, 1,000 for State Senate, and 1,200 for the U.S. Congress. They have a little over five weeks to collect the signatures, a daunting task given that New York State election laws make it easy to disqualify signatures over trivialities, so a substantial number over the minimum is required. No wonder the existing incumbents are unwilling to enact legislation and budgets that, however justified, are opposed by the small number of interest groups that go out and collect signatures for them, or that provide them with the money to hire professionals to do it.

Yet an independent candidate must collect 1,500 signatures to get on the Election Day ballot for State Assembly, 3,000 for State Senate, and 3,500 to for the U.S. Congress, in even less time, during July and early August when many people are away. Since most people are not at home during the work day, signature collection is limited to three hours per weeknight, and to weekends. There is simply no way that someone with a job and family responsibilities, no matter how diligent and dedicated they may be, can collect that many signatures in the allotted time -- unless they are either wealthy enough to hire professional canvassers or are backed by the very same interests who are supporting the existing incumbents. And while one may object that an independent nomination puts one on the November ballot, while a party nomination just qualifies one for a primary, the reality is that few primaries are contested, and even fewer are seriously contested. So an independent challenger requires three times the signatures of a political machine incumbent, and must collect those signatures in less time. This is, perhaps, the most un-democratic feature of New York State’s non-elections.

Therefore, in districts where the majority party accounts for more than 65 percent of the registered voters who are enrolled in a political party, independent candidates should be allowed to get on the November ballot with the same number of signatures required by the major party candidate, and should be allowed to collect those signatures over a longer period of time. Such a rule would ensure that non-responsive and ineffective legislators could face a challenger -- not in a primary in which only the special interests get out and vote, and not a candidate of the other major party that no one wants to vote for, but by someone with roughly the same point of view but perhaps a little for integrity and capability, and on Election Day. It would make it possible that when people showed up to vote in November, they would have a real choice of who to vote for.

4. Minor parties should stop cross-endorsing incumbents in legislative districts. State residents who want to change things should join those parties rather than the Democrats or Republicans.

It would be nice if the New York State Legislature were to enact changes to the Election Law to make it easier for people to run against them. It is not likely, however, that it will do so.

Even so, the New York State Election Law does have one provision that could, in theory, allow challengers to run against incumbent state legislators. Candidates for minor parties with ballot access - currently the Independence Party, Conservative Party, and Working Families Party - can get on the ballot by collecting five percent of the relatively small number of their registered party members in a district - plus a cushion for petition challenges and lawsuits. As a result, a member of one of those parties, or Republican or Democratic challengers who the minor parties have given permission to run, can get on the Election Day ballot with a relatively small number of signatures.

For example, in the 44th Assembly District where I live, there are 847 members of the Independence Party, 263 members of the Conservative Party, and just 92 members of the Working Families Party. That means that only 43 signatures are required to get on the Assembly ballot as an Independence Party member, 13 as a Conservative Party member, and just five as a Working Families Party member, plus a cushion. Similarly, in the 20th State Senate District, there are 2,582 members of the Independence Party, 392 members of the Conservative Party, and just 357 members of the Working Families Party. That means that only 129 signatures are required to get on the State Senate ballot as an Independence Party member, 20 as a Conservative Party member, and 18 as a Working Families Party member, plus a cushion. And, in the 11th Congressional District, there are 5,489 members of the Independence Party, 755 members of the Conservative Party, and 698 members of the Working Families Party. That means that only 275 signatures are required to get on the ballot for Congress as an Independence Party member, 38 as a Conservative Party member, and 35 as a Working Families Party member, plus a cushion.

Therefore, under current election laws, these minor parties are in a position to generate competition for public office. In general, however, they fail to do so, preferring instead to cross-endorse either the existing incumbent or the candidate of the other major party, a challenger who in New York’s gerrymandered districts is very unlikely to win. Moreover, the minor parties are generally not focused on creating competition in these one-party races at all. Rather, their main focus is on major statewide and citywide elections for Governor, Mayor, U.S. Senator, Comptroller, or Attorney General. Why?

For one thing, although the number of signatures minor party candidates require may not be great, getting that many signatures is not easy. Only party members can sign, only party members can witness the signatures, and only a small number of party members are willing to spend nights and weekends for over a month collecting them. Prior to doing it myself 21 years after reaching voting age, I had not personally met anyone who collected signatures on behalf of any party, minor or major, or who would have considered doing so. Minor party members are spread out over a wide area. The Board of Elections lists are not up to date, and many purported party members will turn out to have moved or changed parties by the time a canvasser comes to call, so in reality a minor party may need to collect the signatures of ten or even twenty percent of those in a district to get someone on a ballot. Based on my observation of a (for a minor party) very well organized and experienced petitioning operation, about 1½ hours of work are required to collect each and every signature. No wonder minor parties often cross-endorse well-financed incumbents, who can use their own operations to collect the required signatures. They extract whatever promises they can in exchange.

For statewide offices, in contrast, the election law does not require any signatures to be collected. If a minor party’s state committee votes to cross endorse a candidate for President, Governor, State Comptroller, Attorney General, or Senator, that is all that is required. That candidate is on the ballot, and party members who do not like the choice are, in fact, required to collect signatures - and a lot of them - just to get a competitor on the primary ballot. That is what happened in 2002, when the Independence Party leadership endorsed incumbent Republican Governor George Pataki, but Thomas Golisano forced a primary and the party membership rejected Pataki as its nominee.

Minor party leaders argue that cross-endorsement is a way to make a small difference, the only difference that realistically may be made. In exchange for trying to give its ballot line to incumbent Governor George Pataki, over the objections of many members (including myself), the current leadership of the Independence Party secured State Senate passage of a bill permitting Initiative and Referendum. That bill died in the Assembly. In exchange for cross-endorsing Mayor Mike Bloomberg, the IP secured a proposed Charter Amendment to allow non-partisan elections in New York City. That was voted down by the public. And in exchange for various cross-endorsements for incumbents, the Working Families Party has secured the Assembly passage of a higher minimum wage for New York State. That bill has not yet been enacted into law either. Minor parties point to these near successes as evidence of the value of fusion politics, and "getting a seat at the table."

In the New York State Legislature, however, I believe that the table needs to be kicked over, in the hope that when everyone picks themselves up there will be some new players, and they will be playing a different game. One can debate the value of cross-endorsing rather than running a third candidate in a major election in which the two major parties are, in fact, competing for office. In New York’s gerrymandered legislative districts, however, the minor parties are not the third, fourth or fifth parties. They are, in reality, the second party, the only possible source of opposition on Election Day in November given New York State’s current Election Law, the only realistic way to have a functioning democracy at all. There is an obligation that goes with that. As the original Independence Party platform, never repealed and thus theoretically still in effect, states:

The most important reform of the Independence Party (in the category "The Restoration of Democratic Choice and Electoral Accountability"), however, is the party's very existence. The Party will contest the seats where one of the other two parties has decided that the incumbent cannot be contested. The Party will seek to finance itself from among its own members, and thereby present the choice of a locally funded candidate against a candidate beholden to special interests and interests outside the district. In this manner, the Independence Party will alter the present stalemate in politics and increase the choices available to the voter.

Talk is cheap. Indeed, I’ve been talking for years, at little cost to myself and my family, about the need for minor parties to rise up and try to unseat Republicans in the New York State Senate, Democrats in the New York State Assembly, and either in the U.S. Congress in order to take away their majorities and force them to agree to real change. Now that I have, in fact, run for public office on a minor party line, at some cost to myself and my family, I believe I have the right to make the following recommendations:

And, the local IP leadership did, in fact, help me get on the ballot for State Assembly in 2004. I would have preferred to run as an independent candidate, but that is simply impossible under the existing election law. And since voting in November doesn’t matter if there is no real choice, and under current law only minor parties are in a position to offer that choice, it makes more sense to join one of those parties than it does to remain independent.

- Lawrence D. Littlefield, Brooklyn, NY, vampire-state@att.net

 

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