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Larry Norden: After Revolution, the Reform

Larry Norden of the Brennan Center for Justice talks about last week’s coup in the New York State Senate

When it came time last Monday to explain his motives for turning the New York State Senate into a circus, Tom Golisano cited a 2005 report by the Brennan Center for Justice, which concluded that New York’s legislature was the most dysfunctional in the country.

Little had changed in four years, Golisano said, despite the promises he’d heard, despite more than $4 million he’d spent on State Senate and Assembly races last year, ostensibly to support reform-minded candidates and to give Democrats a majority in the Senate. He was especially unhappy with the budget the legislature passed, which raised taxes on wealthy New Yorkers such as himself and increased fees across the board. He said that the Democrats in the Senate had not gone far enough, fast enough, in reforming its rules, and that Majority Leader Malcolm Smith was insufficiently grateful for his help and unresponsive to his concerns.

So Golisano enlisted his chief political advisor, Steve Pigeon—who was burned that some of his allies did not get the patronage jobs he’d promised them from Senate Democrats—to hatch a plan to upend the Senate majority, handing control to a coalition of 30 Republicans and two Democrats.

And so the games began, leading to the current impasse, with 31 senators in each camp and the people’s business suspended indefinitely. On Friday, at a press conference here in Buffalo, Golisano acknowledged that the gaudy show of shifting allegiances and posturing that attended the Republican coup was frustrating and absurd. But he pointed to a set of Senate rule reforms passed on Monday, immediately upon the execution of the coup, as an example of real, historic change that would abide long after the curtain dropped on scenery-chewers like Pigeon and State Senator Pedro Espada, Jr.

To check that rationale, AV spoke with Larry Norden of the Brennan Center, whose study Golisano cited and which has been pushing reform of New York State’s legislature for years.

AV: What’s good and what’s bad in the set of rule changes the Republican coalition passed last Monday?

Norden: The two best things are they appear to guarantee some sort of equitable distribution of resources for staff members, regardless of party or seniority, as well as distribution of central staff. That’s the staff that basically controls everything that goes on in the chamber, and that staff is now going to be distributed more equitably between the parties according to proportion.

The other thing that has been used traditionally as way for leadership to wield control over individual members is that they controlled allocation of all the funding members need to run their office—from how much staff they can hire to how much money they have to pay for rent for their offices. Under the new rules, that’s going to be distributed according to a formula and equally, not according to what party you’re in and how well liked you are by the leadership. First of all, that’s good for taking control from the leadership, but also it’s just more fair. It’s not fair, if you happen to elect someone who’s in the minority, that your senator, who represents just as many people as the senator in the next district, doesn’t have the same amount of money to run his office, which represents you.

AV: How about getting bills to the floor?

Norden: Another good thing, although it doesn’t take effect until this session is over in July, is that there’s more power for members to make sure that bills get to the floor for a vote, whether or not leadership wants them to. In New York, we’ve had a number of instances over the years where a majority of members claim that they support a bill but they cant get it past leadership. That has two bad effects: One is obviously it’s anti-democratic if one person—and in the case of the Senate it’s been Joe Bruno—has been able to keep a bill from coming to the floor even though the majority of New Yorkers and the majority of the Senate say that they support it. And the other thing is, of course, it lets senators avoid having to be accountable on difficult issues. One issue that people might associate with that today is gay marriage. You may have, as Senator Tom Duane has said, a majority of senators saying that they support the bill, but that’s easy to do if they know it’s never going to come to a vote.

AV: What are the new mechanisms by which a senator can bypass leadership to get a vote on a bill?

Norden: There are two ways. There’s something called a motion for consideration. If the bill has been voted out of committee, any member can seek a vote, and if he gets a majority of members to vote in favor of that motion, then the bill will immediately go to the floor for a vote. The other is a petition, which seems to be an even stronger way to do that, where you just have to get a majority of the members to sign on to say they want this bill to be voted on. The first method, you can have something like the members just don’t show up for the vote. But the second method really puts members on the spot. They can really be pressured to state their opinions one way or another. Either they sign the petition or they don’t, so you can really find out where senators stand on an issue.

The other thing they did is they basically got rid of the message of necessity, which has been abused in New York for a long time. The message of necessity is a way of getting around the constitutional requirement that members need to have three days before they vote on a bill, so they have a chance to review it. It’s been used to push things through without consideration.

There are other things that are good. They put term limits on committee chairs, I think six years, and created a rule to create a thing similar to C-Span. I would say those are less important but they’re good things as well.

AV: So what did the rule changes miss?

Norden: One thing is that some of these rules don’t go into effect until July 15. I’m not happy about that. But bigger than that, I would say two things.

One thing that we have really been pushing for, and neither Republicans nor Democrats as a conference have seemed particularly anxious to take up, is to get committees to really work, to have a formal mark-up process on bills—and only in New York would this be a big deal—so that bills are actually read in committee, so that they are debated, so that they are marked up, and so folks can add amendments and there is a public vote on those amendments.

That does not happen in New York committees. It happened once, and that was a couple weeks ago. Senator Daniel Squadron agreed to do it on a bill in his committee, to try it out.

AV: Which bill?

Norden: It was a tenants right bill that was introduced by Senator Liz Krueger. It was extraordinary—they had to make up the rules as they went along, because they had no experience in doing this. In most state legislatures, not only is that an everyday occurrence, it is a huge part of a legislator’s duties.

AV: It’s what committees are for, right? To hash out legislation, to improve it, to make sure it’s written correctly.

Norden: Exactly. This tenants rights bill that was marked up—members were actually going through the language and saying “What exactly do these words mean?” and “Maybe this would be better language.” That’s the kind of thing that you want to be done to bills. First, it means the members actually have to read them, but it also makes potential confusion about what the language means less likely. It also makes it less likely that there will be mistakes.

For whatever reason, when the Democrats had their temporary committee on rules reform, this kind of formal markup process was not one of the recommendations, and the Republicans did not make it one of their recommendations, either. This really says something about the culture in Albany. Legislators can understand things like “It’s not fair that our staff resources aren’t the same,” particularly when they’re in the minority. They can understand about member items and how those are abused. They can even understand the frustration of having a bill that they want to get to the floor blocked by leadership. That’s all within the culture of Albany.

But the whole actual doing of legislation is still not really part of the culture of Albany, so it’s a more difficult sell.

AV: Do you think that committee reform was skipped over because it wasn’t top of mind, or because the coalition wanted to preserve the power of committee chairs to control legislation?

Norden: My guess is that it’s more of the former than the latter. Many legislators still don’t think of their job as getting into the nitty-gritty of legislation, becoming experts on the legislation in their committee. A lot of legislators are perfectly happy having their job basically be constituent service, getting earmarks for their district.

The other thing I wasn’t so happy about, and it may have been a drafting error, is that [Republican Majority Leader Dean] Skelos in his press conference on the new rules made a big deal of getting rid of proxy voting in committees. This has been a problem in the Senate for years—members aren’t actually present to vote. Though the Republicans claimed to make a change last time around, in 2006, you can still, if you’re a senator, just give your vote on various issues to the chair and not show up to the meeting. As a result, that’s usually what happens. Forget about the process of debating and amending a bill; most members aren’t even there when they vote on bills.

Skelos made a big deal about getting rid of that, but we read the rules and we didn’t see that they actually had gotten rid of proxy voting. So this will be the second time the Republicans have claimed to have eliminated proxy voting and haven’t really.

AV: What are the odds that these rule changes will last?

Norden: My hope is that once something is written down as acceptable to a majority of members, it becomes difficult to roll it back. Maybe I’m being to Pollyanna-ish on this, but we’ve put together three reports on the operations of the state legislature, and the complaints that we kept hearing from rank-and-file members, mostly anonymously, is “We can’t do too much because leadership has this stranglehold. We’ll lose our resources, we’ll lose our member items. The leadership controls what gets to the floor. We can’t do anything about it.” If the last two weeks have shown us anything, it’s that freshman senators can actually wield a lot of power in Albany. Two freshmen senators basically turned everything upside down. Leadership is in a weaker position no matter who emerges as leader—and who knows what’s going to happen over the next week or two.

Some have been lamenting this, saying that it may have been dysfunctional when there was one person in charge, but at least things got done.

I don’t want to return to one person running the show. I hope that the lesson that reform-minded rank-and-file members will learn from this is that they do have some power.

AV: Tom Golisano, who funded and presumably bankrolled this revolt, seems to believe these rule changes are worth the chaos the coup has caused. Do you agree?

Norden: There’s a lot that’s broken in New York. Obviously, if we had a decent campaign finance system, what he did would have been a lot more difficult. I will say this: The Democrats, before they took over the chamber, promised real rules reform—and they voted unanimously on real rules reform when they were in the minority, to really change the way the chamber operated. And then they came into power and they took it very slowly. He’s right, the budget process was completely closed. And even though the temporary committee on rules reform made some recommendations, six months later nothing had really changed in the way the chamber operated. They hadn’t actually passed real changes, and the recommendations they made didn’t go far enough.

If the Democrats had made the changes they promised to make, and if the budget process had been open, and if Tom Golisano had his opportunity to air his concerns publicly, and if the budget still went the way it did and not the way Tom Golisano wanted it to, he really wouldn’t have a reform leg to stand on. In that case, the argument he would have to make is “I just made a power grab. I was unhappy that the state legislature raised my taxes, so I decided to flip the chamber.” I think that would be a much more difficult position.

So I think he has a point. Do I think it was the best way to do it? No, but he’s not without a point.

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