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Observation: Should The Courts Decide Control Of New York’s Senate? June 2009

Should the Courts Decide Control of New York’s Senate?

By Robert B. Ward
Deputy Director, the Rockefeller Institute of Government

Robert B. Ward

The question of who controls the New York State Senate is, for now, in the hands of the 62 senators rather than the courts. But one Senate leader, Pedro Espada, warns that the issue may have to return to the judiciary, and a lingering power vacuum would likely produce new calls for judicial intervention. If and when such an appeal goes to the state’s highest court, the Court of Appeals, its decision whether to accept the case could turn on a simple question: What does uncertainty over the Senate leadership mean for the people of the state?

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Robert Ward is deputy director of the Rockefeller Institute. He is also author of “New York State Government: Second Edition,” published by The Rockefeller Institute Press. A version of this commentary also appeared in the Times Union of Albany, N.Y.

Once upon a time, temporary lack of a recognized leader in the state Senate would hardly have been noticed. Before the Great Depression, state government did little beyond enacting and enforcing the criminal and civil laws, maintaining roads, and supporting local school districts. Once lawmakers approved the annual budget, there wasn’t much to do but go home.

During and after the Depression, activist governors from Franklin Roosevelt to Nelson Rockefeller expanded Albany’s role dramatically. The state’s responsibilities and budget grew to include major programs for the poor, a large public university, interstate highways and public transportation systems. Yet still, the Legislature’s job was mainly to act on gubernatorial proposals for expenditures, taxes and laws. For half the year or more, only the Governor’s staff and executive agency employees reported for duty at the Capitol.

But in the 21st Century, for better or worse, the power of state government extends further into New Yorkers’ day-to-day lives than ever before. As a result, the duties of a Senate or Assembly leader involve important decisions even when the Legislature has completed session for the year.

Each year, New York State distributes billions of dollars in grants, loans and other financial assistance to private businesses, colleges, hospitals and other nonprofit organizations through public authorities such as the Dormitory Authority and Urban Development Corp. (UDC). Starting in 1975, after a fiscal crisis at UDC, the Legislature began requiring that most authority projects be approved by a joint executive-legislative entity, the Public Authorities Control Board (PACB).

The board’s June 18 meeting agenda includes approval of funding items such as $500,000 to help DeMet’s Candy build a new plant in Big Flats, Chemung County; a general project plan for expansion of the Javits Convention Center in Manhattan; and up to $419 million in tax-exempt bonds for various projects of the North Shore-Long Island Jewish Hospital System.

More and more in recent decades, deciding on such financial assistance has become part of the day-to-day, year-round job description for individual legislators and their leaders. The PACB meets monthly, and approval of each project requires unanimous consent by the three voting members. Those individuals include the representative of the Senate majority, Senator William Stachowski of Buffalo, appointed to a one-year term that continues during the current uncertainty regarding control of the Senate. At some point, lack of a clearly recognized leader in the Senate could make it hard or impossible for the board to act – thus halting funding for dozens of important public and private projects across the state. (As one indication of its power, the board last came to public attention when Speaker Silver used his position to veto Mayor Bloomberg’s planned Olympic stadium on Manhattan’s West Side.) Potentially long delays on such projects are one illustration of the stakes involved in the current power vacuum.

The day-to-day functions of the legislative leader also include housekeeping such as hiring staff and approving contracts for office rental and other expenses. The state attorney general and comptroller must sign off on many such activities at the request of the leader. Attorney General Andrew Cuomo and Comptroller Thomas DiNapoli need to know whose signature on a contract or other official document is legally binding for the Senate.

The Senate’s well-known constitutional duties include approving major gubernatorial appointments. With no leader who could call the house to order and schedule votes, such appointments will remain either in abeyance or at best provisional – a status that often slows an agency’s ability or willingness to undertake any significant new action.

Most obviously, of course, continued darkness in the Senate chamber means inaction on legislation. Normally, June is the busiest time of year for the Legislature, with votes on scores of bills of both statewide and local importance. New York City Mayor Michael Bloomberg is pressing for action on legislation to extend mayoral control of the city’s schools. County leaders elsewhere in the state seek continued authority to impose sales tax at current levels, warning that inaction will lead to painful property-tax increases. Perhaps of most immediate concern, Governor Paterson has said he will have to eliminate thousands of state jobs if the Legislature does not act to reduce payroll costs by reforming the public employee pension system.

The prospect of inaction on all the matters mentioned above provides a good case for the Court of Appeals to decide the issue, one way or the other.

Yet there’s also a strong argument for the judiciary to stay on the sidelines. In refusing on June 16 to decide the case, Justice Thomas J. McNamara of the state Supreme Court (New York’s trial court) said it would be “improvident” for the judiciary to make a decision that could effectively select the leader of another branch of government. Many Americans took that view when the Supreme Court intervened in the 2000 presidential election.

The case against judicial involvement is not only constitutional, but practical as well. What would happen if there were no agreement among Democratic and Republican leaders on a way forward, and no judicial diktat forcing rank-and-file senators to recognize a new leader? Each individual senator would face a simple choice: Support continued partisan gridlock, or move to decide the matter in some way that would permit action on essential business. Very likely, the rancor that has led to the current impasse would freeze the status quo in place for a time. Proposed new laws would gather dust, major projects would go without legislatively authorized funding, and so on.

Still, most state services would function normally despite any lingering uncertainty in the Senate. Homes for the mentally disabled would continue to operate, the state would send school aid to local districts, and even new programs such as the expansion of health coverage included in this year’s budget could go forward.

Eventually, though, lawmakers would be forced to figure out a way to end the gridlock at the Capitol – or risk severe voter wrath over their inaction. Members of the Legislature understandably seek to limit political risk, and no doubt are aware that many New Yorkers are unhappy with the current meltdown at the Capitol. Despite their bitter disagreements, the parties could conclude that their own best interests require agreeing on power-sharing arrangements to get by until the 2010 elections or departure of a current member shifts the balance of power to one side or the other. Failure to reach such agreement would mean 18 months of chaos in the Senate – hardly an attractive position for incumbents seeking reelection.

There is one duty of the Senate leader that must be fulfilled in an emergency. That is to serve as acting governor if Governor Paterson were to become incapacitated or leave office. New York’s Constitution provides that, if there is no lieutenant governor, the temporary president of the Senate becomes acting governor in such a case.

Fortunately, though, the Constitution goes further. If the governor cannot serve, there is no lieutenant governor, and the president of the Senate is also unavailable, another leader with statewide authority is automatically designated as acting governor. That is the Speaker of the Assembly – Speaker Silver, who by all evidence is perfectly capable of filling his constitutional duties should the need ever arise.

A ruling from the highest court in the state would likely be the quickest and clearest route to resolution of the Senate leadership stalemate. But in legislatures, which are intended above all else to balance complicated and conflicting interests, the easy answer is not always the best.


The Nelson A. Rockefeller Institute of Government, the public policy research arm of the State University of New York, conducts fiscal and programmatic research on American state and local governments. It works closely with federal, state, and local government agencies nationally and in New York, and draws on the State University’s rich intellectual resources and on networks of public policy academic experts throughout the country.