The BOOKPRESS September 1999

Albany Agonistes

Marty Luster

It has been said that there are two things you donít want to witness being made: sausages and legislation. Since this is an analysis of the mother of all wiener-schnitzelsóthe New York State budget processóyou may want to avert your eyes.

A brief historical overview is helpful in understanding the current political quagmire in Albany. It will reveal a dual imbalance of power: one between the executive and legislative branches, and another between the legislative leadership and the members of the legislature.

In 1929 the state legislature, bowing to an irate public, gave up much of its control over the making of the state budget to the executive branch. Until that time, most of the budget originated in legislative committees and was subject only to limited gubernatorial rights. The constitutional and statutory changes that occurred in 1929 resulted from the legislatureís continual overstuffing of the budget with pork.

The 1929 amendments required the governor to submit a proposed budget and related legislation to the legislature. The Assembly and Senate were prohibited from altering language contained in appropriation bills submitted by the governor, and could add nothing to the executive proposal without risking a veto. All they could really do was to strike out or reduce items.

In short, 1929 was a watershed year; the new amendments vested enormous budget-making power in the governor while limiting the legislative function severely. These constitutional and statutory changes opened the path to the creation of a strong executive in New York, not only with regard to the budget, but also in the creation and implementation of general public policy as well. For the generations that followed, the legislators, being truly part-time, were generally happy enough to act as a rubber stamp for the executive and to serve their constituents by helping to direct local projects and shepherd private bills through the process. This continued through the years of Nelson Rockefellerís tenure as governor, during which he not only exercised strong personal leadership, but also enhanced the power of the executive branch by dramatically increasing its personnel, scope, expertise and political operation. The legislature has been playing catch-up ever since, resulting in the closely related problems of chronically late budgets and legislative gridlock.

When people talk of a string of 15 consecutive late budgets, one important point is missed: There has rarely been an honest "on-time" budget in New York since the days of Rockefeller. Prior to the Cuomo administration, it was common practice for the legislature to pass a "budget" by the April 1st fiscal year start, but then to add to it and make major modifications by agreement with the governor later in the year. New Yorkís Constitution permits the passage of a "supplemental budget," and this process was often used to complete the work that was left hanging by the April 1st deadline. More recently the legislature has avoided the use of supplemental budgets in the hope of completing the process in one action. The failure to have a complete budget in place by April 1st has been highlighted as a result, but in reality that deadline has rarely been met in the past 25 years.

As the public began to take notice of the annual delay in adopting a budget, so too did it begin to pay attention to other defects in the legislative process. It has only been in the last ten years or so that the problems of closed-door budget negotiations have been publicly discussed. This has led to a broader examination of the legislative process, the extraordinary power that New York legislative leaders possess, and the extreme partisanship that characterizes the New York Legislature.

Given this background, this yearís budget process may be seen in a new light. Nevertheless, the seeds for this yearís near-record delay were most recently sown in 1995 and over the ensuing four years.

In 1994 George Pataki ran for governor on a three-pronged platform of restoring the death penalty, substituting "workfare for welfare," and ensuring an on-time budget. To help achieve this latter goal, the Governor, in his 1995 State of the State message , assured legislators that, having himself served in the legislature, he was sensitive to its institutional priorities and that for him, "friends will always be friends." Soon thereafter, Governor Pataki attempted to unilaterally withhold pay from the legislature and the legislative staff and to impose a series of punitive and arbitrary measures which he believed would result in a timely budget. In 1995 the Governor even called for an "open" meeting of the legislative leaders and the executive, but he was careful to exclude the members of the legislature, the elected representatives of the people.

These actions by the Governor in 1995 heightened personal animosities between Governor Pataki and members of the legislature and reinforced the historic sense within the Assembly and Senate that the legislative branch was losing its co-equal status with the executive. The fear was that unless the legislature stood up to the Governor, there would be virtual one-person rule in New York. This fear and mistrust between governmental branches had been growing since the Rockefeller days, but the actions of George Pataki in 1995 re-ignited the passions of the parties and created an unprecedented level of mistrust between the branches.

1996 witnessed yet another failure of the "three-men-in-a-room" method of creating budgets. Although public interest was somewhat lower than in 1995, little had been done to heal the wounds inflicted in that year. In 1996 the art of legislative "hostage-taking" was taken to new heights. Insisting upon his version of workersí compensation reform, Governor Pataki, refused to participate in meaningful budget discussions. By the time an agreement was reached on the workersí comp issue, the legislative session had rolled into summer and another very late budget was assured.

The following year again saw the budget held up by extraneous matters. Welfare reform was the hot topic for 1997, along with the renewal of rent control laws in the New York City Metropolitan Area. Once again, the rank and file membership of the legislature was frozen out of the budget-making process, and members relied upon their respective leaders to take to negotiate those items of most importance to their constituents.

But 1997 was also the year of a major shift in attitude in the legislature. Previously, members had sought to redress the imbalance of power between the legislature and the executive by acquiescing to the consolidation of power by the Speaker of the Assembly and the Majority Leader of the Senate. But now, particularly in the Assembly, there was a growing dissatisfaction with the top-heavy leadership style that had dominated the budget process.

As members returned to Albany for several days each week during July, less and less information was forthcoming from the leadership regarding what was presumed to be the on-going negotiations. Frustration grew in direct proportion to the lack of communication and information from the leadership. The straw that nearly broke the camelís back occurred at the very end of July when an Assembly staffer leaked a memo from the Speakerís counsel to Assembly central staff advising that they were to share no budget information with any member of the Assembly without prior approval from the Speakerís office. The memo went on to specify that the term "member" included the Chairman of the Ways and Means Committee, the Chairman of the Assembly Education Committee and the Majority Leader of the Assembly. The inside game had turned into a black hole from which no knowledge or information could escape.

What had been private rumblings of discontent among members soon began to erupt into more public statements and several confrontations with the Speaker and his staff. Even after the session ended with the passage of a budget on August 4th, members continued to gripe to each other and to devise ways to reform, not only the budget process, but also the entire legislative process. The media even speculated about a possible challenge to unseat the Speaker following the 1998 elections.

Apparently, the rumblings were heard. When the legislature came back into session in January 1998, it appeared that things would be different. In the Assembly, the Speaker announced the advent of the use of joint, open conference committees to work out differences between the Assembly and Senate versions of the budget. He also implemented a number of other internal reforms to give members a greater say in the activities of the house, the formulation of policy, and the implementation of legislative goals. For example, the new policy would no longer allow the announcement of legislative initiatives by the Speaker until those goals were first discussed with the majority members of the Assembly.

As budget time drew near, the major reforms were, to the surprise of many, actually implemented. Each house of the legislature passed its own version of the budget by April 1st and regular and public meetings of ten joint conference committees resulted in a budget being sent to the Governor within 14 days of its due date. The conference committees actually functioned, were given significant jurisdiction both substantively and fiscally, and were provided with ample staff support. Members were nearly delirious with their new-found power and opportunity to contribute, while the leaders were satisfied with stepping back, giving up some of their power, and adapting to the new role of providing general guidance to their respective houses.

This euphoria was short-lived. Within days of the presentation of the first budget created by conference committees, Governor Pataki, in what has been described as a fit of rage, vetoed virtually all of the new appropriations added by the legislature to his proposed budget. In short, the work of the conference committees was destroyed and, in a telling demonstration of political pique, the Governor included in his list of approximately 1400 vetoes many items sponsored by Democratic members of the Assembly while leaving those sponsored by their Republican Assembly colleagues intact.

By 1999, given both the long-term and recent history of the relationship between the branches of government in New York, the likelihood of an on-time budget was never great. Although differences in proposed spending levels were within a $2 billion range (in the context of a $72 billion budget), Governor Pataki targeted such traditional Democratic priorities as pre-K education, health care, and higher education financial aid for cuts.

Confronted with the likelihood that the Governor would again exercise his veto power in a most political and irrational manner, the Assembly leadership saw no reason to repeat the 1998 conference committee experience. After all, why go through the bother and trouble of conference committees if the end result was to be the Governorís imposed budget? The reality is that the Democratic Assembly Majority lacks by two votes a sufficient number to override the Governorís veto, and it would be highly unlikely for the Republican-controlled Senate to even attempt a veto override.

The Assembly leadership was faced with a difficult choice. Proceed quickly to conference committees and face the likelihood of having its initiatives vetoed or play hardball and hang in until the Governor agreed not to exercise his veto power as long as the legislature stayed within agreed-upon spending limits. Compounding this difficult choice was the fact that Governor Pataki was simply not available for serious budget discussions for much of the spring as he traveled throughout the country tilting at presidential windmills. In the face of a Republican Governor and a Republican Senate, the Democratic Assembly decided to insist upon a no-veto pledge.

As it turned out, once the Governor agreed to participate in the negotiation and to withhold broad-scale an agreement was reached within a very short period of time. Conference committees were established to work out details with regard to a very small part of the overall budget, though they were little but window-dressing designed to have it appear that the 1998 reforms were alive and well. In the end, the Governorís proposed cuts to education, higher education and health care were rejected. Had he agreed to a no-veto pledge in March, this budget would have been delivered on time. Instead, the legislature finally approved the budget in the wee hours of August 4th.

It might well be argued that the state would have been better served in 1999 had the legislature proceeded directly to conference committees upon adoption of their one-house budget resolutions in March, despite the prospect of gubernatorial vetoes. Vetoes are part of the political process and, if the legislature is unable to override them, perhaps the problem is that the legislature has not built sufficient public support to insure a successful override. If there is no political price to be paid for unwarranted and irrational veto action, that is not a defect in the system but rather the result of disengagement by the public: ultimately a much more serious problem than the lateness of the budget from year to year.

Still, the legislature and Governor must strive to overcome the chronic budget delays, and legislative reform is a major element of that task. Having tasted the possibility of a participatory legislative system in 1998, this year 114 members of the legislature (a majority) have co-sponsored a bill that would mandate the automatic use of joint conference committees to resolve differences in legislation between the two housesónot only budget bills, but all legislation. This would deprive the Majority Leader of the Senate and the Speaker of the Assembly of their present power to call for conference committees at their exclusive discretion. In the face of this historic call for reform, the Speaker of the Assembly has responded by saying, "I donít think itís reality." The Majority Leader of the Senate has commented "you canít have just members on any issue just wanting to activate it. Thatís why they elect leaders."

Despite this apparent lack of political will on the part of the leadership, those members who have joined together in support of the mandatory conference committee bill continue to believe that a more active and meaningful role by the rank and file will raise both the level of debate as well as the status of the legislature as a branch of government. From the legislative point of view, there is significant evidence that the call for reform is achieving critical mass, and that neither tradition-bound legislative leaders nor self-absorbed governors can much longer continue to thwart the desires of every thinking legislator for a more rational, democratic, and timely budget process.

Marty Luster is currently serving his sixth term in the New York Assembly, representing the 125th District.

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