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Spring 1997
   
Albany’s Travesty of Democracy
Eric Lane
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New York's Legislature taxes, spends, and regulates more energetically than almost any other state's. During its most recent session, completed last summer, it enacted more than 700 laws and appropriated over $60 billion, drawing on the $33 billion that it raised in direct taxes and on vast sums of federal aid. These decisions profoundly affect life in the entire state. In New York City alone, the Legislature lays down the law for everything from the sales tax and Medicaid, to police pensions and governance of the public schools.

But activist government should not be mistaken for democratic government—and Albany is anything but democratic. Yes, New Yorkers cast their votes for State Assembly and Senate, but when the vast majority of their representatives arrive at the Capitol, they don't legislate; they meekly follow the instructions of their legislative leaders. It is no exaggeration to say that the speaker of the Assembly and the majority leader of the Senate are the legislative branch in Albany. They pick the issues, close the deals, and—ultimately—make the laws. A newspaper photo from a few years back furnishes the perfect emblem for this system. In it, the majority leader of the Senate stands behind a member of his party who had just voted no on a bill that the leadership had sponsored. The leader's thumb is turned up—an order to the clerk to reverse the erring senator's vote.

As counsel to the minority Democrats in the State Senate from 1981 to 1986, I participated in this undemocratic leadership culture and supported it. In the course of my research and writing on the legislative process since then, I have had serious second thoughts. The Legislature's practices violate every principle of good lawmaking: they exclude most of the people's elected legislators from the process, squelch deliberation and the injection of new ideas, and deny the public any meaningful say in legislation or even the information they need to hold their elected officials accountable. The result for New York: sloppy laws that do not represent the views of the people. The State Legislature is an embarrassing throwback to the days of bossism and party machines—and we need urgently to fix it.

Consider the Legislature's moribund committee system. In healthy legislative bodies—in Congress or other state legislatures or even the New York City Council—committees do much of the heavy lifting. They introduce legislation, debate it, amend it in markup sessions, hear the opinions of outside experts and the public, and issue committee reports describing their intent and reasoning to fellow members and to the executive agencies and courts that will have to interpret their handiwork. Although party leaders sometimes coordinate such committee work from above, committee chairmen and members usually act independently, even defiantly; they are power centers in their own right.

Such a division of labor, and authority, is largely unknown in Albany. As a former legislative staffer has neatly summarized the Legislature's committee life:  "Nothing ever happens. A leadership-created agenda is followed and bills are voted on, always favorably. No debates or markup sessions are held, no amendments permitted. Nothing except votes are recorded." Needless to say, these meetings produce no committee reports, since there is, quite literally, nothing to report. And committee members make no effort to benefit from the knowledge of outsiders who might shed light on matters before the Legislature: former comptroller Ned Regan reports that during his 14 years as New York State's own chief financial officer, no committee ever asked him to testify, despite his repeated offers to do so.

As if to prove that committees in Albany are mere window dressing, leaders in both houses drop all pretense of needing them during the last month of each year's session, when the Legislature traditionally turns to the really important items on its agenda. Committees stop meeting altogether, and the leadership's top staff members take over as gatekeepers, with suppliant legislators lined up outside their doors in hopes of getting bills onto the legislative floor. I once asked the counsel to several former speakers how legislation gets on the docket in the Assembly: "Don't you guys have a rules committee?" Without missing a beat, he replied, "I'm it."

What explains the utter tractability of these committees? Plain lethargy, in part. Committee chairmen and ranking minority members are unaccustomed to doing legislative dirty work, despite receiving an additional $6,500 to $24,500 (on top of their $57,500 salaries) for taking on these "leadership jobs." And the Assembly speaker and Senate majority leader keep committees on the shortest of leashes. So great is their fear of committee independence that they appoint all substantive committee staff themselves, a prerogative reserved for chairmen in almost every other legislative body.

When a committee chairman nonetheless tries to strike out on his own, the Legislature's pashas move quickly to undercut him. Last year a long-time lobbyist and acquaintance of mine persuaded the chairman of a committee to champion a number of important reforms. Shortly thereafter, and much to his surprise, the lobbyist received an invitation to meet with the chamber's legislative leader to discuss strategy on these issues. Assuming that the committee chairman had arranged this rare get-together and would be in attendance, the lobbyist called the leader's staff to make an appointment—only to discover that the chairman was emphatically not on the guest list. The message was clear: the leader—and only the leader—handles serious business.

In the rare event that a committee chairman openly rebels, the leadership simply co-opts him. In exchange for fealty to the leader's broader agenda, the chairman will win greater authority within his own policy area, even the right to choose his own committee staff. But make no mistake: such empowerment of a certain legislator does not translate into a similar empowerment of his committee; it just makes him, in essence, the leader of his own small domain, with the ability to dictate its activities. As before, the committee will neither gather facts, hear the public, nor deliberate over legislation.

Go into either legislative chamber in Albany and you'll find no less of a leadership-orchestrated spectacle. Again, the contrast with other legislative bodies is instructive. In Congress, for example, members often engage in robust debate on the floor, especially on controversial measures. Members of both parties freely offer and adopt amendments, and it is difficult at times to predict how a bill will fare in a final vote, despite the best efforts of party leaders to ensure a certain outcome.

By comparison, the New York State Legislature looks like a meeting of the Supreme Soviet. When the leadership sends a bill to the floor in either chamber, members of the majority understand that their job is to see that it passes intact, without amendment or debate. The minority sometimes speaks out, contesting legislation as best it can, but members of the majority feel no obligation to reply and sit impassively until their colleagues run out of steam. The result of this charade: during almost every annual session of the Legislature, not a single bill goes down to defeat or is even amended.

The waning days of a legislative session always show this conspiracy of silence at its worst. With no legislation yet on the table for a vast range of "must" issues, the leaders of the Assembly and Senate hold a flurry of meetings with each other and with the governor; leadership staffers work round the clock, hammering out agreements acceptable to their bosses. And ordinary members? They wait in the wings for a signal to show up on the floor. Finally, clerks appear to distribute printed bills, each accompanied by a message of "necessity" from the governor, allowing the Legislature to ignore the state Constitution's requirement—meant to promote deliberation—of three days between the printing of a bill and the vote on it. Within 24 hours the legislative leader or his designee mounts the rostrum. He calls for a vote, and in short order, the bills pass without comment, their contents largely unknown to the members. To take just a few examples from the closing days of the 1996 session: the Legislature printed a 541-page, $18 billion bill covering Medicaid, mental health, and prisons on July 11 and passed it the next day; it printed a 463-page, $12 billion bill covering education and labor matters on July 12 and passed it that same day; it printed Governor Pataki's 53-page, $1.75 billion Environmental Bond Act on July 12 and passed it on the 13th. The elected officials who voted on these far-reaching measures barely had enough time to turn these hundreds of pages, much less to read or discuss them.

The Legislature's rubber-stamp procedures are not only undemocratic; they also conceal just how shoddy the laws made in Albany are. Once, when we in the Senate minority were miffed over the majority's refusal to provide us with our normal share of  "members' items"—bills that give individual legislators money to distribute for "special needs" in their districts—we settled on a radical course of action: we would debate every bill on the floor for the full two hours allotted by the rules. Though deliberation wasn't exactly the intent of this exercise, we quickly discovered dozens of errors in the logic and grammar of bills—a predictable enough consequence of our Potemkin committees. Even members of the majority had to concede that bills deserved closer attention. Still, they refused to correct these errors, which would have required the unthinkable: amendments. As for us, having carried the day with our obstructionism, we allowed things to return to normal.

For members with legislative projects of their own, the leadership provides the only reliable avenue for getting a bill onto the floor: lose the support of the Assembly speaker or Senate majority leader and you lose all hope of even airing your proposal. During the interminable day-nights at the end of one session, a powerful member of the Senate majority—the chairman of an important committee—burst into my office at 3 am; he was on the verge of tears. He had sponsored a bill giving relief to a small group of New Yorkers injured by a certain drug, and his leader had promised to send it to the floor and see to its passage. The senator and his allies, including some Democrats, had already celebrated the victory. Now, one of the majority leader's staff informed him, the bill was dead: the state insurance industry had complained, and that was that. "Offer the bill as an amendment," I advised. "Or tell your leader that failure to consider the bill will lead to a rebellion." He gave a resigned smile and shuffled back out my door. Such resistance, he knew, would get him nowhere—except legislative Siberia.

On rare occasions, the legislative leaders do release their members from the yoke of party discipline. Usually it's a question of political survival. The Republican leader of the Senate, for example, would never demand that a member of his party from an urban district vote against rent control. There are also some matters of conscience, like the death penalty and abortion, on which the party takes no position and allows real debate. When casino gambling came up for a vote this past January, Senate Majority Leader Joseph Bruno decided not to force the outcome. After a lively exchange of views, the bill failed—the first to do so in the Senate in five years. In a revealing moment, Bruno conceded to the New York Times that such give-and-take made him uneasy: "To see a bill on the floor and hear some of the conversations . . . and to sit there and just watch it happen, I can tell you, is very difficult." To which one might add, only in Albany.

Defenders of the Legislature will protest that ordinary lawmakers do get to have their say on the substance of bills, just not in committee or on the floor. There is, after all, the weekly party conference. The leaders dominate these sessions, to be sure, but they give members a fairly free rein, allowing them to discuss legislation from every angle—or so the Legislature's defenders say. One former Assembly chieftain goes a step further, insisting that the party conferences are genuinely independent and warning that a legislative leader who ignores his party colleagues too long quickly finds himself out of a job.

In truth, party conferences are no substitute for the ordinary activities of legislating. Such meetings focus single-mindedly on politics. Standing at the head of a long table and facing his members, the leader describes important and politically controversial bills, the details of which he has usually worked out already at a separate meeting with the leader of the other chamber and often the governor. His aim is not to get advice on the substance of pending legislation but to test the tolerance of members for the stands that he has taken and to smoke out opposition. Legislators can gripe that a bill is bad policy, but they get a serious hearing only when they have something to say about how it might affect their own chances for reelection or some party constituency. If the politics of a bill is truly a problem, the leader may decide to amend it; at a minimum, an anxious legislator can win the right to vote against the party position. One consideration, above all, constrains the party conference and drastically limits its usefulness: the unwillingness of legislators to embarrass their leader by forcing any major renegotiation of a bill. By and large, a bill arrives at the party conference as a fait accompli.

It should come as no surprise that party conferences, the only forums in Albany where legislators actually discuss legislation, are the only legislative gatherings in the capital that are closed to the public. When a state court suggested several years ago that these meetings might violate the state's open-meetings law, the Legislature rushed to amend the statute in order to protect its cherished secrecy. Supporters of these closed-door sessions insist that they promote a free exchange of ideas, but anyone familiar with Albany knows that nothing of the sort takes place in party conferences. The conferences are closed not to allow legislators to discuss the public interest more candidly but to ensure that their constituents never discover just how little time they actually spend considering the public interest.

The great mystery of this leadership-dominated system is why the legislators put up with it. After all, the Assembly speaker and Senate majority leader do not hold their jobs by force of arms or act of God; they are elected by their colleagues. To survive, they must keep a majority of their fellow partisans happy—and they don't always succeed. In 1995 Senate Republicans decided that they had had enough of Majority Leader Ralph Marino's heavy-handed tactics; they unseated him and put Joseph Bruno in charge. Legislators in Albany might brandish such a threat at any time to win more latitude for themselves, but they don't. So the puzzle remains: why do otherwise serious, aggressive, smart people choose to shut off their critical faculties and turn over lawmaking in the state to a handful of party bigwigs? Why do they allow themselves to be infantilized?

The answer is that, despite suffering the occasional indignity, most legislators in Albany are perfectly content with the present system. Some insist that forceful leadership is a requirement of good government. As one lawmaker has argued, "Without a strong leader, there would be constant turmoil; with too many hands on the wheel, nobody could drive the car." Indeed, every legislature needs able leaders to organize its operations, to meld disparate views, and—most important—to provide a single legislative voice against a unified executive in our system of checks and balances. But the legislative process is not, to borrow the legislator's metaphor, a car intended for a lone driver, steering from one point to another. The pull and tug of many hands is exactly the point of lawmaking in a democracy: representatives bring their different interests and priorities into open conflict, ensuring that no one gets everything and everyone gets something. The compromises that result are seldom perfect, but they approximate the public interest far better than any system of "strong leaders."

Most legislators abdicate their duties for less public-spirited reasons. While there is very little incentive for a lawmaker to challenge Albany's leadership culture, going along with it brings real rewards. The Assembly speaker and Senate majority leader hand out committee chairs and other leadership posts at their pleasure, and these jobs mean extra pay for members. The two chambers have also seen fit to give their leaders full control over the office budgets of individual legislators—an extraordinary power virtually unheard of in other legislatures. Favorites of the leaders can count on plenty of money for hiring staff, purchasing computers, and so forth.

For lawmakers in Albany, however, there is yet another prize for allowing the leadership to dominate the Legislature: help in winning reelection. Because the leaders control the most lavishly funded of the parties' campaign committees, loyal legislators don't have to worry constantly about fund-raising. And when redistricting rolls around every ten years, they can rest easy knowing that the leader would not consider even the smallest shift of favorable voters to another district.

No less important, by shirking the hard work of lawmaking and turning it over to the leaders, legislators can devote themselves to the easier, more rewarding tasks of public office: meeting with constituents, interceding with the state bureaucracy, attending political events, and speaking out on the issues. Such activities make legislators popular—many are minor celebrities in their districts—and they amount to the lightest of workloads: little wonder that so many lawmakers keep coming back to Albany decade after decade. The capital's political culture even supplies legislators with a ready excuse for the occasional vote that offends constituents: "The leader insisted."

Beyond these concrete rewards of loyalty to the leadership, the prospect of change just simply frightens many legislators. For them, the current process is familiar and predictable; they know and like their cushy place in it. What's more, whether liberal or conservative, they fear that any shift of power will destabilize the system, bringing about laws that they oppose. By comparison, deliberative democracy is an abstraction, something they neither know nor want.

Talk about the legislative process leaves most people cold, but it matters deeply that the State Legislature conducts its business with such disdain for representative government. In the first place, Albany's leadership-dominated political culture smothers any hint of bold or creative thinking about the state's pressing problems. An intellectual sameness permeates the whole process, making it difficult to identify a distinctively Democratic or Republican view on most issues.

The Legislature's slapdash lawmaking also perverts the separation of powers in state government, giving far greater authority to unelected officials. Poorly crafted laws translate into vast discretion for agency bureaucrats, who must try to figure out the Legislature's intent without benefit of committee reports, transcripts of floor debates, or other common legislative records. Courts, too, must apply statutes regardless of their ambiguity, so when a clear legislative intent is lacking, judges create one.

Finally, the Legislature's undemocratic ways breed contempt for state government. New Yorkers who know about Albany's slavish partisanship, last-minute deals, and debate-less votes rightly wonder why such a process should dispose of so much of their income and intrude so insistently in their lives and livelihoods. This class is small—most New Yorkers haven't the faintest idea what goes on in the capital—but it contributes to a growing cynicism about our democratic institutions.

What can be done to restore some integrity to the Legislature? First, committees should insist on more autonomy, with chairmen claiming their due authority over committee staff. Albany might then hold genuine hearings on controversial bills, a key step toward better lawmaking.

Second, the whole Legislature should operate far more in the light of day. All legislative meetings, including party conferences, should be matters of public record, and committees should be obliged to write a committee report for every bill they consider. Such records would bolster the Legislature's accountability and keep the executive and judiciary from overstepping their bounds when they apply and interpret the law.

These reforms would not require a constitutional amendment or even a statute. A simple majority vote in each house would do. How to get legislators to act? The coming months present several opportunities. New York's lawmakers desperately want a pay raise, having gone without one for eight years, and they intend to bring it up in the current session—a perfect time for commentators, talk radio hosts, and citizens to ask if they even deserve what they are currently paid. And this November the people of New York will vote on whether to call a constitutional convention. Introducing the reforms that I have described into the debate over this referendum might just get legislators' attention and prompt them to act on their own.

The Legislature's problems did not develop in a year and won't disappear in one either. Lasting change will come about in Albany only when reform becomes a standard election issue, like taxes, criminal justice, and the schools. Voters will have to press candidates on their willingness to turn the Legislature into a true representative body. Editorial boards and interest groups will have to stake their endorsements on a commitment to openness and deliberation. Today, legislators' complicity in the Albany system costs them nothing. Tomorrow, it should cost them their jobs.

 

 

 
Democratic lawmaking needs debate, hearings, committee reports—all the machinery that winnows compromise out of the clash of opposite views. You won’t find any of it in Albany.
City Journal Spring 1997.
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