City Journal

Kenneth Silber
New York’s Nightmare Legislature
Democrats and Republicans in Albany have a deal: don’t mess with my spending and I’ll leave yours alone. Who will make them mend their ways?
Spring 1995

Like mistletoe that runs riot while its host tree languishes, the New York State Legislature has drained vitality out of the Empire State's economy for years. Today the Legislature is the chief obstacle confronting the Pataki administration's push to reduce the size of state government and promote economic growth: whatever progress the governor makes will be hard to sustain without thorough reform of the rules and practices of both the Senate and the Assembly.

Under current arrangements, the Legislature operates as a relentless business-crushing, job-killing, tax-and-spend machine, geared toward the expansion of government and the promotion of special interests at public expense. An opaque legislative process shields lawmakers from public accountability while allowing organized pressure groups to wield vast behind-the-scenes influence. A sprawling, costly legislative bureaucracy serves the interests of politicians and the politically connected. The Legislature is a deeply reactionary institution, resistant to new ideas and slow to adjust public policy to changing conditions.

For more than two decades, a Republican majority has controlled the State Senate, and a Democratic majority has controlled the State Assembly. The result has been government by quid pro quo—the two majorities posturing over their differences while tacitly collaborating to accommodate the permanent interests of each, usually by spending more public money. New York State is governed, in effect, by a single Incumbency Party, dedicated above all to preserving its own power and privileges.

The policy stasis, in other words, is part and parcel of a profound entrenchment of power. The Legislature has striven to keep its membership as unchanging as its policies. Gerrymandering, arcane election laws, and unreformed campaign-finance practices protect incumbents and preserve the existing majorities; generous mailing privileges and other taxpayer-financed incumbent advantages skew election outcomes even further. Many state legislative races are not even remotely competitive. Among the 87 election winners in New York City in 1994, only 11 received less than two-thirds of the vote; in 43 races the winner got 80 percent or better, while another 10 candidates faced no opponent at all. No wonder that Albany's two majorities have taken on a quasi-permanent status, maintaining their numbers despite sharp swings in the fortunes of the political parties nationwide. In 1994, even as Republicans swept to power in Congress and won 11 new governorships, including New York's, the partisan balance in the state's lawmaking branch changed only marginally: the Republicans increased their strength in the 61member Senate by one seat, reaching a 36 to 25 majority, while the Democrats lost six seats in the 150-member Assembly, retaining a 94 to 56 edge. By contrast, Democrats in other states lost control of 19 state legislative chambers.

Similarly, the national Democratic tide in 1992 caused barely a ripple in Albany; the Assembly Democrats gained several seats, and the Republican numbers in the Senate were unchanged. Throughout the 1980s New York's Legislature had the lowest turnover rate of any state lawmaking body in the country, according to a study by the National Conference of State Legislatures. From 1986 to 1990, the reelection rate in each of the Legislature's chambers never fell below 98 percent.

Hitherto, efforts to reform the state's election laws—so uniquely convoluted that about half of the nation's election-law litigation occurs in New York State—have had little result. Candidates must collect thousands of signatures and follow complex petition rules in order to get on the ballot—a boon for incumbents, who have political organizations in place that are adept at collecting signatures. In 1992 Governor Mario Cuomo, eager to claim credit as a good-government reformer, pressed the Legislature to revise the election laws. Lawmakers agreed to only marginal changes, eliminating some of the most trivial reasons for disqualification of candidates—the cover of a petition having a comma out of place, for example. And even these reforms favor officeholders, notes Andrew Greenblatt, executive director of New York State Common Cause. The original requirements were so arcane that even incumbents occasionally ran afoul of them; under the revised laws, virtually all those who are kept off the ballot will be challengers.

Meaningful campaign-finance reform has also been lacking. New York State has not adopted campaign spending caps, strict contribution limits, or public financing of campaigns to counteract the overwhelming advantage that incumbents enjoy in raising money. Each year, in a long-standing Albany tradition, the Assembly Democrats propose such reforms, fully aware that their bill will die in the Republican Senate; having scored some political points, the Democrats then allow the matter to fade quietly away until the following year. Meanwhile, special-interest money flows ever more rapidly into the campaign coffers of both parties. In 1992 the ten most generous political action committees gave $3.2 million to legislative candidates, a 27 percent increase over 1990. The New York State United Teachers union was the largest contributor to legislative candidates, followed by municipal labor unions, medical and legal associations, and real estate interests. Fund-raising techniques frowned upon even in Washington—such as "breakfast clubs," in which lobbyists pay annual dues to hold private meetings with lawmakers—are routine in Albany.

Gerrymandering in New York State has achieved a degree of virtuosity rarely found elsewhere, ensuring Albany's two majorities. Every ten years the Legislature redraws the boundaries of its own electoral districts, nominally to take into account demographic changes reflected in the latest census figures. While many states turn such reapportionment over to redistricting boards that operate with at least some independence from state lawmakers, New York leaves the process firmly in the hands of the majority party in each chamber. In 1992, the last time reapportionment occurred, the Senate's redrawing of its electoral map protected Republican members while forcing several Democratic incumbents to run against each other. In turn, the Assembly's redistricting increased the vulnerability of Assembly Republicans.

The Legislature's redistricting plan must be passed as a package and signed into law by the governor. During the past two decades the institution's leaders have honored an informal agreement allowing each chamber to redraw its own districts without interference from the other. Thus Senate Republicans don't try to defend Assembly Republicans, while Assembly Democrats leave their Senate Democratic colleagues to the wolves. "There's nothing right about this process," grumbled Assembly minority leader Clarence Rappleyea, following passage of the 1992 redistricting legislation. Although Governor Cuomo denounced the Senate Republican portion of that year's redistricting plan as blatant gerrymandering, support for the plan within the two chambers was sufficient to withstand a threatened veto, which in any event never materialized.

Dominance by the majority parties is not limited to the once-a-decade reapportionment process. It pervades everyday life in the Legislature. The institution's procedures give minority-party lawmakers little ability to speed or block the flow of legislation; indeed, the size of the minority party's staff and budget is largelv determined by the majority party. Although thousands of bills are introduced in the Legislature each year, members of the minority sometimes go for years without passing any legislation; typically they spend their time making symbolic protests on the floor or at news conferences. Manfred Ohrenstein, announcing his retirement in 1994 after 20 years as Senate minority leader, was asked by reporters to cite instances in which the Senate majority needed Democratic votes to pass important legislation; he could think of only a few. Former Congressman Stephen Solarz, a Democratic member of the Assembly from 1968 to 1974, when it was under Republican control, has summed up the experience as "the American political equivalent of the Gulag Archipelago."

Central to majority-party dominance is a system of leadership that concentrates power in the hands of two people: the Assembly speaker and the Senate majority leader. These leaders have broad authority to make committee appointments, dole out perquisites, and allocate the institution's budget and staff resources. In the Senate the majority leader has the formal power to shelve any bill—a "one-person un-overridable veto," in the words of Common Cause's Andrew Greenblatt. The Assembly speaker's formal power to shelve any bill was eliminated in the mid-1970s in an effort to democratize the Legislature's internal processes. But in practice, the speaker's ability to derail legislation remains intact; and, unlike in the Senate, this power is now exercised informally, making it harder to tell where or why a bill stopped moving.

Sometimes the leaders simply tell their members how to vote. The majority in each house places a high priority on protecting its most vulnerable members, called "marginals"—relative newcomers, for example, or those from districts normally controlled by the opposition. When the majority seeks to raise taxes or pass other unpopular bills, marginals are allowed to vote against their party's position, provided there are enough votes to win without them. Most important decisions take shape at closed-door party caucuses; the outcome of votes taken on the floor is rarely in doubt. During Ralph Marino's tenure as Senate majority leader from 1989 until 1994, bills were almost never defeated in an actual vote; typically, if Marino opposed a piece of legislation, he did not allow it to reach the Senate floor.

With a handful of people exercising this kind of power behind the scenes, the Legislature engages in little meaningful debate about public policy. Meanwhile, the absence of competitive districts assures little debate at the local level. Growing public apathy about state politics is one consequence; in recent state legislative elections, New York has ranked near the bottom among all states in voter participation. Elsewhere in the country, state lawmaking branches have emerged as focal points of popular discontent, with voters directing their ire against the self-serving insider politics of incumbents and special-interest groups. In more than 20 states, voters have imposed term limits on their state representatives. In New York State, however, the lawmaking branch barely appears on the public radar screen—a Stealth Legislature.

Public indifference runs particularly deep in New York City, where local and national politics have long overshadowed events in Albany; the downstate press limits its minuscule Albany coverage to the governor, traditionally a figure of national importance. "There's no visibility to state legislative behavior in New York City," says political scientist Gerald Benjamin of the State University of New York. "Why would people want to fix something they don't know about?"

Hidden from the public eye, the Legislature has created a vast engine of spending, taxation, and debt. The majority in each chamber has fortified its power by funneling money to interest groups and constituents. Each majority has docilely allowed the other to shower largesse upon its own power base—upstate and the suburbs for Senate Republicans; New York City for Assembly Democrats—in exchange for a fairly free hand to do the same. In essence, the two majorities have resolved their disputes over budget priorities by agreeing to spend more money on everything.

As a result, while New York State lingered in recession during the early 1990s, Assembly Democrats and Senate Republicans pursued policies guaranteed to stall economic growth: the lawmakers passed a billion-dollar-plus net increase in taxes and fees each year from 1989 to 1994. Consequently, New York continued losing jobs, even as the rest of the nation recovered. Says Fred Siegel, a professor at Cooper Union, "The Legislature essentially divides up the pie to all the organized interest groups, both left and right, independent of the viability of the state economy."

Many of the strongest Albany pressure groups, either part of the public sector or closely associated with it, have a vested interest in high government spending. Unions representing both teachers and civil-service employees have close alliances with the majority parties of both chambers. With the teachers pressing for higher education spending, New York's annual per pupil cost has soared to $9,000, more than 50 percent above the national average. The Civil Service Employees Association and the Public Employees Federation, among the most powerful players in Albany politics, showed their clout earlier this year when both chambers of the Legislature voted to raise pensions for retired state and local workers—a raid on the treasury that Governor Pataki vetoed.

The majority in each chamber is closely allied with groups wary of cutting back New York State's $19 billion Medicaid system: Senate Republicans with hospitals and nursing homes, Assembly Democrats with patients' groups and social service organizations. As a result, New York has created the most expensive Medicaid system of any state, with generous eligibility rules and nearly all the optional benefits the Washington permits. By the early 1990s, New York accounted for almost 20 percent of Medicaid spending nationwide, even though the state has less than 10 percent of the nation's Medicaid recipients. The Pataki administration has sought to navigate this political minefield by spreading the pain of its big proposed Medicaid cuts among providers and recipients: the unintended result might be a unified front against any major change in the system, instead of the enmity of just one legislative chamber.

The partisan division of the Legislature has meant that virtually any interest group can find powerful allies in one chamber. Senate Republicans have championed aid for suburban school districts along with prison construction, which they regard in part as a jobs program for upstate districts. Assembly Democrats have given priority to welfare, public housing, and other social programs. The State University of New York and insurance companies are Republican priorities, the City University of New York and trial lawyers Democratic ones.

Unsurprisingly, lobbying is one of Albany's big growth industries, with spending by interest groups to influence state legislation skyrocketing from $5.7 million in 1978 to $38.5 million in 1993. Moreover, even these eloquent statistics grossly understate the amount of lobbying; an executive who flies to Albany, stays in a hotel, and buys a legislator lunch to discuss legislation need report only the lunch as a lobbying expense. Though much lobbying occurs while legislation is still in draft form, lobbyists are required to report efforts to influence a bill only after it's been printed. A freewheeling lobbying culture flourishes in Albany, with the interest groups that are major campaign contributors bombarding legislators with innumerable small gifts, such as fancy dinners and tickets to sporting events. Many of the most effective lobbyists are former lawmakers or legislative aides, who understand the legislative process firsthand. Former Assembly Speaker Mel Miller, forced from office in 1991 by a fraud indictment (he was later acquitted), returned to Albany several years later as a lobbyist for health-care companies and other clients.

Since neither majority can pass legislation without the other, horse trading is incessant. During budget negotiations in 1994, Assembly Speaker Sheldon Silver derided Republican proposals for business—tax reductions as "corporate welfare" but ultimately went along, once Republicans agreed to give New York City $42 million of a $62 million school-repair fund. "The Republicans and the Democrats have basically walked in lockstep on a lot of issues," says Thomas W. Carroll, a Pataki administration official and former president of Change-NY, a free-market fiscal watchdog group in Albany. "From time to time, the only thing that flared up was the fight over the spoils, not over the basic question of whether there should be spoils."

Almost two decades ago, following the mid1970s collapse of the Urban Development Corporation and the near-bankruptcy of New York City, Governor Hugh Carey temporarily succeeded in slowing Albany's tax-and-spend dynamo. He used his line-item veto to keep state spending in line with inflation. But in 1982, Carey's last year in office, the Legislature finally put an end to that period of unaccustomed restraint, repeatedly overriding the governor's vetoes. During the next 12 years, the Legislature and the Cuomo administration raised spending by an average 7 percent a year. Even New York's high taxes have not been enough to support this spending: the state has relied increasingly on borrowing by its public authorities. Last year, for example, Senate Republicans and Assembly Democrats voted to allow the New York State Thruway Authority to issue $225 million in debt, without voter approval.

The Legislature also has given bipartisan support to padding the state budget with hundreds of millions of dollars for lawmakers' pet projects-senior-citizen centers, community athletic clubs, local cultural institutions—euphemistically known as "members' items," "capital projects," and "legislative initiatives." Buying good will in members' home districts, such projects remain virtually invisible to the rest of the state. Only occasionally does an item attract broader, usually negative, publicity, as when the New York Times smelled a rat in Senator Nancy-Larraine Hoffman's allocation of $75,000 to an upstate institution called the Museum of Cheese.

On matters that can't be settled by higher spending, the Assembly Democrats and Senate Republicans frequently deadlock. Crime is a case in point. In 1994 the Republicans killed a Democratic proposal for an assault weapon ban. Meanwhile, the Democrats derailed a "threestrikes-and-you're-out" bill for violent felons that was supported both by the Republicans and also by Governor Cuomo, who wanted it to be the centerpiece of his reelection campaign.

Gridlock, instead of having the beneficial effect of restraining big government, often has had the opposite result of freezing archaic programs and regulations into place. In 1993 the Legislature was paralyzed for weeks over Republican proposals to change New York City's rent regulations; Democrats eventually agreed to begin removing rent protection for a handful of the wealthiest tenants in exchange for a four-year delay of any further discussion of rent regulation. The debate also demonstrated the Legislature's blas6 attitude toward possible conflicts of interest: among the defenders of rent stabilization were a number of lawmakers (including Saul Weprin, then the Assembly speaker) who themselves lived in rent-stabilized apartments but were not required to disclose the fact when voting on the subject. While presiding over the expansion of state government, the Legislature has bloated itself with bureaucracy. The institution's budget has nearly doubled during the past decade, reaching $177 million in 1994, the largest budget of any state lawmaking body nationwide. The legislative staff, numbering some 4,400, is more than twice as big as that of California's Legislature, which represents 13 million more citizens.

Featherbedding and patronage of course help swell the numbers. The Syracuse Herald-Journal published articles last year detailing the lawmakers' hiring of relatives, political cronies, and ex-legislators, sometimes for jobs with ill-defined responsibilities. After Queens Democratic Assemblyman Morton Hillman narrowly lost his reelection campaign in 1992, the Assembly appointed him special assistant to the Legislative Commission on Water Resource Needs of Long Island, a newly concocted position. According to the Herald-Journal, one in ten lawmakers has had a relative on the Legislature's payroll during the past two years—including Senate majority leader Joseph Bruno, whose daughter Susan worked until recently as a secretary for the Assembly Republican minority. The legislative budget also pays for numerous perks, such as a fleet of several dozen automobiles for senior lawmakers and their aides. Ralph Marino, when he was Senate majority leader, assigned himself two state-owned cars: one for Albany, one for his Long Island home.

Expanding staff and budget have provided lawmakers ever more powerful instruments of incumbency protection. Many staffers who perform constituent services during the legislative session go on temporary leave during election season to work on campaigns. The line between governing and political activity sometimes blurs. The Legislature's television studios, for example, use public funds to produce programs featuring individual legislators for broadcast on public-access channels in their home districts; filled with flattering images and upbeat interviews, these programs look remarkably like campaign propaganda. Republican Senator John Daly's weekly 15-minute legislative review, for instance, has opened with clips of Daly on the Senate floor and at a news conference, with a voice-over saying, "In Albany, fighting for you—State Senator John Daly."

Needless to say, the Legislature doesn't make it easy to study the budget that pays for all these things. It provides only a bare outline of its payroll and other expenses. True, lawsuits have recently forced greater openness, so that both chambers will soon begin to release itemized reports of each member's spending, something that Congress and many state legislatures have been doing for years. But much murkiness will remain. Money goes not just to individual members but also to a byzantine tangle of committees and commissions, such as the Legislative Task Force on Demographic Research and Reapportionment, which employs dozens of permanent staffers for the once-a-decade redistricting process. The Legislature's budget allows funds to be shifted among spending categories at whim. Moreover, money appropriated for the Legislature's operations but not spent is rolled over from year to year, generating a surplus that totaled over $60 million as of last year. Not included in the Legislature's regular budget, this kitty is controlled by the institution's leaders, with virtually no accountability.

In addition to the biggest staffs and budgets of all state legislators nationwide, New York's lawmakers have the biggest paychecks, with base salaries of $57,500 a year, in most cases supplemented by annual bonuses that range from $6,500 to $30,000, based largely on committee assignments. In other large states, the annual salaries for state lawmakers range from California's $52,500 to Texas's $7,200. In many states, too, independent boards set legislative salaries—unlike New York, where lawmakers control their own compensation, bound only by the requirement that any raises be deferred until the next legislative term.

Legislative reformers have made cogent arguments on both sides of the question of whether state lawmakers should be full-time or part-time. New York's Legislature, however, combines some of the worst features of both systems. Most members, seeing lawmaking as their primary source of income, have grown insulated from the state's economic condition, while focusing on preserving their own jobs. At the same time, the institution's conflict-of-interest rules regarding outside income are weak: legislators who are part-time election lawyers have helped to craft the state's election laws, for example—making it hard to know whether the arcane laws were written merely to protect incumbents or also to provide work for members' firms in New York's lucrative field of election-law litigation.

Given the New York State Legislature's long history of avoiding significant reform, there is not much cause for optimism that the institution will impose dramatic change upon itself now. Seeking to be regarded as reformers, the Legislature's leaders might well eliminate some of the institution's more visible defects, but they aren't likely to dismantle the basic mechanisms of incumbency protection and majority self-perpetuation. "People don't change systems that reward them," says State University of New York political scientist Gerald Benjamin.

Yet even some modest reform—driven in part by pressure from Governor Pataki—would be a beginning. Recently, moves toward a more open legislative process have occurred. Joseph Bruno, shortly after becoming Senate majority leader in January, curbed the chamber's practice of holding all-night sessions, which in the past have been forums for cutting last-minute deals and passing legislation with little public scrutiny. Bruno and Sheldon Silver, who became Assembly speaker a year ago, have agreed to create a system of conference committees to reconcile differences in legislation between the chambers—aimed especially at ending the annual closed-door budget negotiations among the governor, the Senate majority leader, and the Assembly speaker, which Governor Pataki has announced he would have no part of.

However, Governor Pataki's proposals for more fundamental institutional reform face enormous hurdles in the Legislature. The governor has called for state constitutional amendments enacting term limits for legislators and allowing voters to initiate ballot referenda. Unsurprisingly, legislators show little enthusiasm for limiting their own terms, and they are wary of the potential of an initiative-and-referendurn amendment to threaten legislative prerogatives. In virtually every state that has enacted term limits, voters, not legislators, placed the issue on the ballot (and term limits now exist in almost every state in which voters have initiative power). Around the country, ballot initiatives have cut legislative staffs, set limits on tax hikes, and otherwise removed authority from the hands of state lawmakers. New York's legislators, unlikely to pass a constitutional amendment allowing anything like that to happen here, may instead enact a weakened form of initiative-and-referendum, narrowly defining what issues can be put on the ballot or creating a new set of complicated signature-gathering rules, similar to that required for candidates to get on the ballot.

At the moment, policy changes, rather than institutional reforms, are occupying center stage in Albany. Governor Pataki, having won office on a tax-cut pledge and inherited a massive budget deficit, enjoys a favorable political climate for tax and spending reductions. The Senate Republicans seem more willing than usual to put their limited-government rhetoric into practice, reflecting in part the influence of the relatively conservative Bruno. The Assembly Democrats are able to offer only limited resistance, since some of their members represent upstate and suburban districts where Pataki won handily. But once these political currents have passed, in the absence of substantial institutional reform, little will prevent the Legislature from resuming its tax-and-spend ways.

Looming in the background of all this, however, is the possibility of a state constitutional convention that would circumvent the lawmakers altogether. The State Constitution requires a referendum every 20 years on whether to hold a convention; the next vote must be held by 1997. A convention could consider, and submit for voter approval, changes to the Constitution—from term limits, campaign-finance reform, and changing the size of legislative staffs and salaries to requiring a supermajority for tax increases, or subjecting tax hikes to a popular referendum.

It's an idea well worth considering. No other avenue for reform is more likely to change the Legislature fundamentally. Indeed, some reforms, such as the creation of an independent redistricting board, are inconceivable any other way, given the role that gerrymandering plays in keeping Albany's two majorities in power.

The legislators always resisted Mario Cuomo's calls for a constitutional convention. The fact that they do not want a convention may be the best reason for having one.

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