THE NEW YORK STATE LEGISLATIVE PROCESS: AN EVALUATION AND BLUEPRINT FOR REFORM JEREMY M. CREELAN & LAURA M. MOULTON BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW THE NEW YORK STATE LEGISLATIVE PROCESS: AN EVALUATION AND BLUEPRINT FOR REFORM JEREMY M. CREELAN & LAURA M. MOULTON BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW www.brennancenter.org Six years of experience have taught me that in every case the reason for the failures of good legislation in the public interest and the passage of ineffective and abortive legislation can be traced directly to the rules. New York State Senator George F. Thompson Thompson Asks Aid for Senate Reform New York Times, Dec. 23, 1918 Some day a legislative leadership with a sense of humor will push through both houses resolutions calling for the abolition of their own legislative bodies and the speedy execution of the members. If read in the usual mumbling tone by the clerk and voted on in the usual uninquiring manner, the resolution will be adopted unanimously. Warren Moscow Politics in the Empire State (Alfred A. Knopf 1948) The Brennan Center for Justice at NYU School of Law unites thinkers and advocates in pursuit of a vision of inclusive and effective democracy. Our mission is to develop and implement an innovative, nonpartisan agenda of scholarship, public education, and legal action that promotes equality and human dignity, while safeguarding fundamental freedoms. The Center operates in the areas of Democracy, Poverty, and Criminal Justice. Copyright 2004 by the Brennan Center for Justice at NYU School of Law ACKNOWLEDGMENTS This report represents the extensive work and dedication of many people. The initial research was the brainchild of Eric Lane, Eric J. Schmertz Distinguished Professor of Law at Hofstra Law School, without whose expertise in the New York State legislative process and guidance the report would never have been completed. Evan Davis and Frederick A. O. Schwarz each provided not only ongoing inspiration for the project and invaluable insights into the workings of New York State government, but also lent significant resources from their respective law firms, Cleary Gottlieb Steen & Hamilton and Cravath Swaine & Moore, to complete the research for this report. In particular, Jaime Lubbock, a paralegal at Cleary Gottlieb and soon-to-be distinguished lawyer, conducted extensive research over many months despite the many demands on her time. Tricia Beckles, Michael Delehanty, Laura Gavioli, Victor Goldfeld, Anil Kalhan, Nicholas Marantz, and Sarah Samis contributed significant research as well. Tara Herman, a law student in the Brennan Center Clinic, provided critical research over almost a year. Gerald Benjamin, John Dyson, Diana Fortuna, Blair Horner, Frank Mauro, Jeffrey Stonecash, and Robert Ward each read and improved the report immeasurably with their critical commentary and recommendations. In addition, many sitting members of the Assembly and Senate and innumerable staff members in both chambers provided thoughtful feedback and information throughout the process. The Assembly Public Information Office and Senate Journal Clerk’s Office responded to our many requests for information with courtesy and professionalism. Brenda Erickson at the National Conference of State Legislatures provided invaluable assistance in response to our numerous requests for information. Finally, colleagues at the Brennan Center – Deborah Goldberg, Tom Gerety, Scott Schell, and Annette Bernhardt – each contributed their time and wisdom throughout. Of course, any errors in the report are the authors’ alone. This report was made possible by grants from the Carnegie Corporation of New York, the Open Society Institute, and the Rockefeller Brothers Fund. The statements made and views expressed are solely the responsibility of the authors. CONTENTS Executive Summary. vii Introduction . 1 New York State’s Legislative Process . 5 The Short Legislative Process . 5 Consideration by Committees . 5 Referral of Legislation to Committees. 7 Committee Hearings. 7 Committee Meetings. 9 Committee Reports . 11 Committee Staffing . 11 Committee Assignments . 13 Reporting Bills Out of Committee . 14 Restrictions on Discharge Motions . 14 Options for Committee Votes . 18 The Rules Committees . 20 The Legislative Calendars . 21 Debate and Amendments on the Floor . 22 Debate . 23 Amendments. 25 Passage in Each Chamber . 26 Messages of Necessity . 27 Voting Procedures . 30 End-of-Session Passage . 34 Vote Outcomes . 34 Reconciling Bills Passed by Each Chamber . 35 Enactment Rates and the Introduction of Bills . 36 A Comparative Summary of New York’s Legislative Process . 39 The Impact of New York’s Dysfunctional Legislative Process. 42 Failed Representation . 43 Legislation Delayed or Not Passed. 44 Legislators Unable to Legislate . 46 Ineffective Government Without Deliberativeness . 46 Committees: An Untapped Resource . 46 Inadequate Review of Legislation . 47 Inaccessible Government. 49 The Absence of Accountability . 50 Inefficiency . 51 Courts Without Guidance . 52 Recommendations for Reform . 53 Endnotes . 57 Methodology . 77 Appendices . 80 vii EXECUTIVE SUMMARY I INTRODUCTION New York State’s legislative process is broken. This report documents five key weaknesses and compares New York’s process with those in other state legislatures and in the U.S. Congress. Together, the problems identified here deprive New Yorkers of the government they deserve. Indeed, New York’s legislative process limits legislators’ consideration of legislation – whether counted in hearings, debate, amendments, readings, conference committees, or even simply legislators’ presence when they vote – far more than any other legislature. Neither the U.S. Congress nor any other state legislature so systematically limits the roles played by rank-and-file legislators and members of the public in the legislative process. Fortunately, many of the shortcomings of the current system can be remedied without new legislation or constitutional amendments. Mere changes in the rules of the Senate and Assembly would make a significant difference. For this reason, these reforms need not become the victim of the very legislative dysfunction they seek to repair. This report identifies rules changes in five areas that together would make the New York State Legislature more representative, more deliberative, more acces- sible and accountable to the public, and more efficient. These proposed changes are organized here in the order of the legislative process itself – from a bill’s intro- duction and consideration by a committee, to its passage by the full Senate or Assembly, to the final reconciliation of the two chambers’ separate bills into a single bill for final passage. Each chamber of the Legislature has complete control over whether or not to adopt these changes independent of each other and of the Governor. In January 2005, they will vote on the rules that govern their respective operations. Members of the Senate and Assembly who care about meaningful democracy in New York should seize that opportunity to adopt the changes recommended here. New York State’s voters should urge their representatives in Albany to reform the system now. PROBLEM # 1 I DYSFUNCTIONAL LEGISLATIVE COMMITTEES In most modern legislatures, committees “are the locus of most legislative activity.”1 Committees have two principal functions: first, to enable legislators to develop, examine, solicit public and expert feedback upon, and improve bills in a specific area of expertise and to convey the results of their work to the full chamber; and second, to oversee certain administrative agencies to ensure that they fulfill their statutory mandates. New York’s committee system generally does not serve either of these functions: viii THE NEW YORK STATE LEGISLATIVE PROCESS: AN EVALUATION AND BLUEPRINT FOR REFORM Few Committee Hearings. Only 0.5% of the major bills passed by the Assembly and 0.7% of the major bills passed by the Senate from 1997 through 2001 were the subject of a hearing devoted to their consideration.2 Few Committee Reports. Only 1.1% of the major bills passed by the Assembly and 0% of the major bills passed by the Senate from 1997 through 2001 were the subject of committee reports. Proxy Voting. Senate rules permit committee members to cast their votes by proxy. Only five other legislative chambers (out of 99) – including only one other chamber comparable to New York’s “professional” legislature, the Pennsylvania Senate – allow proxy voting in committee.3 Central Control of Committee Staff. In New York, the Assembly Speaker and the Senate Majority Leader hire – and have the power to fire – commit- tee staff. New York’s two chambers are among only 32 (out of 99) that give any role at all to the legislative leadership or party caucuses. In fact, 26 state legislatures rely on a central, nonpartisan staff agency for their committee staff support. New York’s centralized control over staff discourages commit- tee chairpersons from developing and promoting legislation without leader- ship support. Too Many Committee Assignments. The New York State Senate has more standing committees (32) than all but one other state senate (Mississippi, at 35). The New York State Assembly is ranked fifth among houses with 37 standing committees. The proliferation of committees saddles lawmakers with an excessive number of committee assignments, and threatens the qual- ity of committee work. It is only the overall inactivity of committees in New York that renders this problem less acute