Reforming New York State Government · arrangements and institutions of government. The State...

AGENDA FOR CONSTITUTIONAL

CHANGE

Reforming New York State Government

The Coalition for Constitutional Reform and The Office of Assemblyman Richard L. Brodsky

Chairman, New York State Assembly Committee on Corporations, Authorities and Commission

September 10, 2004

Coalition For Constitutional Reform

The crisis of governance and public confidence that has paralyzed state government for over a decade is both an institutional failure and an opportunity. The failure to produce quality, on-time budgets is the most obvious manifestation of the problem. But the failure to address long-term social and economic issues is at least as damaging. The blame for these failures can be attributed to all branches of government, and the political, social, and community leadership of the state. For some time we have been mired in a series of accusations and criticisms that have not moved us forward. The time for personalized attacks and cynicism is past. The people of the state require a fundamental revision of the arrangements and institutions of government. The State Constitution is the place where New Yorkers should seek permanent, thoughtful change that will reinvigorate our governing institutions. There are only two methods of changing the state constitution. Two separately elected Legislatures may place before the people for their approval individual amendments. The people may convene, upon voter approval, a constitutional convention which may similarly place amendments upon the ballot for voter approval. Today we begin the legal processes that cause both forms of constitutional change to occur. We have submitted to the Legislature a number of individual amendments that include a broad revision of the budget process, a change in the way elections are conducted, an expansion of the mechanisms available to the people to require action by state government, a more effective reapportionment system, and fundamental changes in the ways in which state government may incur debt. These amendments will be pursued through the regular amendment process. We have simultaneously introduced a resolution which if passed by both Houses, will yield a referendum on the calling of a constitutional convention for the sole purpose of reforming government institutions, and legislation reforming the delegate election processes prior to any convention. We are actively seeking the support of Members of both Houses of the Legislature, political leaders across the State, and interested citizens of all political persuasions. The statewide outcry for change has been led by press, non-government organizations, and the people themselves. Members of the Legislature, who are charged with activating the procedures for amending the Constitution, and with safeguarding it against trivial or damaging attacks, are each keenly aware of their responsibilities and the crisis of the last years. Their concern for effective, honest, and open government is not to be doubted. If we are to have a genuine conversation amongst the people, and between the people and their elected leadership, then we must all discard the oversimplified and ad hominem vocabulary of recent times, accept the good intentions of those with whom we may disagree, and turn to a debate about ideas, about policies, and in the end about competing visions of the public good. We, as a people, and as elected leaders, are capable of that grand conversation. Today’s actions are the first step in that process.

What follows are the specific amendments that we have introduced. We do not offer these as the only intelligent responses to the current crisis. We welcome alternative or competing proposals. But there has been little public debate about institutional causes of the current stalemates, particularly as they affect the state budget. We believe that the constitutional changes of the first part of the last century, and recent changes in interpretation and practice, are at the heart of the problem. Similarly, changes in political behaviors have not been matched by changes in constitutional protections for our democratic process and the supremacy of the people. We believe that the following changes will remedy those problems. I. Reform of the State Budget Process and Debt Provisions That the process by which budgets are enacted is no longer effective is beyond doubt. A similar crisis in the first half of the twentieth century saw a dramatic shift of budgetary authority to the Executive. Those reforms did make state government more effective for over half a century. But in recent decades that effectiveness has ceased. There are many explanations for that decline, all of which contain some truth. Partisan division, ideological division, the influence of special interests, and ineffective electoral processes all contribute. But these phenomena have existed since the founding of the Republic, to one degree or another. Something new must also be a factor. We believe that constitutional doctrine and practice have imbalanced the powers of the respective branches of government, and as predicted, stalemate has resulted. Most New Yorkers believe that the budget process begins with submission of a unified proposal from the Governor to the Legislature, which in turn accepts, rejects, or amends the Executive Budget. The Governor may then veto increases in spending, which in turn may be overridden by the Legislature. In fact, Governors in recent years, and so far sustained by the Courts, have eviscerated the powers historically available to the Legislature to set the social, financial, and economic policies of the state, by effectively eliminating its ability to amend the Executive Budget, and permitting vetoes of individual words in non-appropriation bills. This imbalance has in turn left the Legislature with only extra-constitutional tools to vindicate its fundamental responsibility to set policy. The result is not just a stalemate, but a significant diminution of the power of the people and their elected representatives to check the Executive Branch. Even the courts that have sustained this new power arrangement have explicitly warned that stalemate would result and that remedy is constitutional change. A separate memo sets forth these new legal arrangements and the courts' warnings. The budget reform we have introduced restores sensible balance to the state budget, by allowing the Legislature to amend the Executive Budget, and preserving the Governor’s ability to veto individual lines. The reforms also include the creation of an independent budget office, a balanced budget requirement, a change to actual expenditure budgeting from the current practice of appropriation budgeting, an end to back-door borrowing, granting the state the power to issue revenue bonds, reforming the revenue estimate

process, and creation of a contingency budget. Related provisions will also create a budget conference committee system, and abolish state authorities transferring their powers to on-budget agencies of government. As part of overall budget reform we are also reforming the process by which state government may issue debt. The practices of back-door borrowing and the use of state authorities for creation of enormous debt are ended. The state is granted the revenue bonding power now exercised only by off-budget state authorities. II. Electoral Reform Much of the current crisis is attributable to shortcomings in the electoral process. The escalating influence of large donors, difficulty in gaining access to the ballot, and the need for a better reapportionment process are all addressed by specific amendments. A constitutional provision requiring expenditure and contribution limits, easier requirements for access to the ballot, liberalized registration and absentee voting and the use of a non-partisan redistricting commission subject to democratic control are included. III. Reform of the Executive and Legislative Branches The Executive Branch’s ability to avoid public scrutiny and democratic control by the use of public authorities is abolished. A restructuring of the legislative branch will overcome partisan and ideological differences, make government less expensive and faster, and reinvigorate the legislative function. A unicameral legislative body of 100 members is proposed, as are an interim requirement for conference committees, and the ability of members to require a vote on any bill. IV. Direct Petition and Response The right of the people to require action by their government must be expanded. At the same time, conventional mechanisms have left enormous power in the hands of special interests. An amendment which balances these competing goals is offered. It permits the people to submit a petition on any specific subject, and requires the legislature and governor to act within forty days of receipt of that petition. The virtues of both direct and representative democracy are preserved. V. Code of Ethics The people expect, and rightly so, that government leaders will use not their positions for personal gain. A constitutional requirement that state government and its subdivisions operate under their own code of ethics is offered. The code must cover conflicts of interest, lobbying disclosure, post-employment practices, financial disclosure, creation of enforcement commissions and other matters are covered with particular reference to those who make or influence policy.

VI. Call For A Constitutional Convention Also proposed is a package that would call for a constitutional convention for the sole purpose of government reform, and simultaneously reform the delegate selection process. The resolution filed today would cause a ballot question to appear at the next scheduled general election which, if approved, would cause a second election delegates no less that ninety days later. The convention would be convened shortly thereafter, and at the conclusion of its deliberations, its’ suggested changes would be submitted for approval by the people. The statutory language filed today would reform the delegate selection process prior to the election of delegates. Those reforms include a change in voting so that each elector would cast one vote and the three highest votegetters would be elected. Current law allows for each elector to cast three votes. This change would probably be needed to meet the requirements of the Federal Voting Rights Act, but in any event is wise in that it will enable a more diverse more representative body of delegates to serve. The statutes would also create a system of public financing for the delegate election. A series of other proposed amendments are also under consideration. Members of the Legislature have already submitted over one hundred twenty amendments on a variety of subjects. These go well beyond the reinvigoration of the branches of government and address substantive issues such as a right of privacy or equal pay. Many who favor reform of government are less certain about the wisdom of opening the state Constitution’s substantive provisions to debate and change. They argue forcefully that the best, fastest, and most inexpensive way of amending the Constitution is the direct amendment approach. They very well may be right, and our package of individual amendments is directed at swift, thoughtful and constructive change. But the right of the people to convene and reconsider their constitution is the heart of American democracy. We believe the people can and will again construct a document that meets our institutional needs, protects the rights and liberties of all, and expresses the social and moral conscience of our state. We do not fear a convention. We will work to change the Constitution through both mechanisms. We invite our colleagues and our fellow citizens to join us.

Agenda for Constitutional Change: Reforming New York State Government

INDEX I. Reform of the State Budget Process bill memo bill II. Electoral Reform A. Ballot Access bill memo bill B. Apportionment bill memo bill C. Campaign Finance bill memo bill D. Voting and Voter Registration Reform bill memo bill III. Executive and Legislative Reform A. Legislative 1. Unicameral Legislature. bill memo bill 2. Bill Request and Vote bill memo bill 3. Conference Committees bill memo bill

B. Executive 1. Reorganization bill memo bill 2. Public Authorities bill memo bill 3. Lieutenant Governor bill memo bill IV. Direct Petition and Response bill memo bill V. Bill of Ethics bill memo bill VI. Call For a Constitutional Convention A. Calling the Convention bill memo bill B. Reforming the Delegate Selection Process bill memo bill Appendix A: Listing of Current Introduced Amendments Appendix B: Legal Analysis of the Budgetary Process

I. Reform of the State Budget Process

NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION

submitted in accordance with Assembly Rule III, Sec 1(e) BILL NUMBER: LBD 89178-01-4 SPONSOR: Brodsky TITLE OF THE BILL: CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing amendments to § VII of the constitution in relation to state finances and to amend § 7 of Article IV of the constitution, in relation to reconsideration of the governor's objections to items of appropriation; and to repeal section 17 of Article VII of the constitution, relating to stabilization of tax revenues. PURPOSE OR GENERAL IDEA OF BILL: This amendment would reform the state budget process including:

• permitting the legislature to amend the executive budget, • changing the budget from an appropriation budget to a cash budget, • the creation of an independent budget office, • establishing a contingency budget, • ending backdoor borrowing, • giving the state the limited power to issue revenue bonds, • reforming the revenue estimate process, • preserving the line item veto of expenditure, • allowing either house to reconsider the governor's veto first, • requiring a balanced the budget, • requiring a long-term capital plan, and • making other technical and timing changes.

SUMMARY OF SPECIFIC PROVISIONS: Section 1 amends Article VII, § 1 to require that:

• the comptroller and newly created independent budget office provide preliminary revenue forecasts and make such forecasts available to the public.

• requires the comptroller certify the actual moneys and anticipated receipts to be available for the proceeding year.

• if the legislature cannot agree upon revenue forecasts by the 10th of March, the revenue forecasts provided by the independent budget office shall be binding.

• the governor hold hearing of the capital needs of the state. • the governor submits to the legislature a detailed, multi-year capital program and

financing plan to the legislature.

Section 2 amends Article VII, § 2 to:

• make certain technical changes to clarify elections of the governor in relation to the submission of the budget.

• change the executive budget to a cash budget.


• change the time that the governor has to adjust the executive budget from thirty to twenty-one days.

• include a new provision that prohibits the governor from including language, which attempts to modify any general, special or local law.

Section 4 amends Article VII, § 4 requires:

• that the budget be balanced and • that the legislature may strike items and the conditions contained therein.

Section 5 amends Article VII, § 5 to create:

• a contingency budget. The contingency budget would automatically take effect on the fifteenth of April if a budget agreement is not reached.


• allow the governor to submit budget bills that only involve expenditures, not statutory changes.


• make technical changes. Section 8 amends Article VII, § 11 to:

• authorize the submission or more than one work or purpose in a bond issue and would prohibit the state from "backdoor borrowing."

Sections 9 and 10 amend Article VII, §§ 12 and 13 to:

• make technical changes. Section 11 amends Article VII, § 16 to:

• allow that state the authority to issue revenue bonds, as the legislature shall provide by law.

Section 12 repeals Article VII, § 17 and:

• adds a new article 17 to strengthen the "rainy-day" fund and provide additional revenue in times of need.

Section 13 amends Article VII by adding a new § 20 to:

• create an independent budget office. Section 14 amends Article IV, § 7 to:

• clarify the governor's line item veto to expenditures only and • allow either house to reconsider the governor's objections, regardless if the house is

of original jurisdiction or not. JUSTIFICATION: As is evidenced by the series of late budgets and gridlock, there is serious need for constitutional budget reform. Reform is needed because there are structural institutional deficiencies exacerbated by partisanship. History is needed to shed light on the current structural deficiencies of the state budget process. Under the leadership of Governor Alfred E. Smith, New Yorker's supported a fundamental change to the budget process—a move from a legislative driven process to a more executive centered process. These changes dated back to the 1915 constitutional convention. Although New York was one of the first states to propose fundamental budget changes, it was one of the last to make such changes. These changes were critical. The former budget process was fraught with corruption and created economic instability. Providing a centralized budget process would stabilize the process and make it more fair and equitable. While most states changed their budget process statutorily, Governor Smith recognized the volatility of statutory change and therefore pushed for constitutional change. However, certain of these great constitutional reforms had unintended consequences that must be remedied. First and foremost, the Constitution must rebalance the power between the legislative and executive branches. In the 1920's was the line item veto was adopted to remedy the problem of legislative logrolling. Scholars and fiscal experts agree that the line item veto protects the stability of the budget process. The State Constitution is clear that the governor has the ability to veto only appropriations. However, a series of court cases and positions taken by the current governor have distorted this constitutional power to equate appropriations with other non-appropriation language. The Association of the City of New York agrees. The Bar's committee on State Affairs believes that several court decisions have

upset the delicate balance of power. See: The City Bar's Committee on State Affairs, "The New York State Budget Process and the Constitution: Defining and Protecting the 'Delicate Balance of Power'", The Record of the Association of the Bar of the City of New York, 58, 345 (2003). We do not change or reduce the executive's power. We simply clarify the executive's power. There needs to be more independence in the budget process often fraught with partisan wrangling. We have therefore created an independent budget office. This idea works in other states like Florida and even in New York City. The independent budget office will objectively forecast revenue. Another structural problem came after the constitutional changes in 1927. Public authorities have become epicenters of isolated political power in New York. While public authorities must self-reliant on generating their own capital, but are of instances backdoor borrowing, whereby State revenue is used to support authorities. In 1993 constitutional changes closed this door but loopholes remain. This amendment closes the remaining loopholes. Besides Vermont, which has no constitutional or statutory requirement that their budget be balanced, New York has one of the weakest balance budget provisions in the country. It is generally understood that the governor must propose a balanced budget (See: Article VII, § 2), but the final passed budget does not. The amendment will requirement New York join the many other states in requiring that the final budget enacted be balanced. Finally, other changes such as the creation of a contingency budget period and changing which house may consider vetoes will end gridlock and ensure the needs of the People of this State are met. PRIOR LEGISLATIVE HISTORY: New bill--2004 FISCAL IMPLICATIONS: None. EFFECTIVE DATE: Resolved (if the Senate concur), That the foregoing amendment be referred to the first regular legislative session convening after the next succeeding general election of members of the assembly, and in conformity with section 1 of article 19 of the constitution, be published for 3 months previous to the time of such election.

II. Electoral Reform

A. Ballot Access B. Apportionment

C. Campaign Finance D. Voting and Voter Registration


submitted in accordance with Assembly Rule III, Sec 1(e) BILL NUMBER: LBD 89167-01-4 SPONSOR: Brodsky TITLE OF THE BILL: CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing an amendment to article 1 of the constitution, in relation to ballot access PURPOSE OR GENERAL IDEA OF BILL: This amendment would liberalize the process of gaining access to ballots to run for political office. SUMMARY OF SPECIFIC PROVISIONS: Adds a new constitutional amendment the states that "no law shall unduly burden the right of citizens to run for elected office in the state. Election laws shall be liberally construed." JUSTIFICATION: Ballot access (determining who gets to run for office) is one of the basic tenets of a democratic government. New York, however, has some of the most stringent and restrictive requirements in the entire country. Numerous examples illustrate the restrictive nature of New York's laws, such as the 1988 US presidential primaries in which many viable candidates were kept off the ballot. While the Election Reform Act of 1992 and the Ballot Access Law of 1996 corrected some of New York's deficiencies a constitutional amendment should be required to take the power out of centralized political parties, and give it to those who wish to participate in the process. PRIOR LEGISLATIVE HISTORY: New bill--2004 FISCAL IMPLICATIONS: None. EFFECTIVE DATE: Resolved (if the Senate concur), That the foregoing amendment be referred to the first regular legislative session convening after the next succeeding general election of members of the assembly, and in conformity with section 1 of article 19 of the constitution, be published for 3 months previous to the time of such election.


submitted in accordance with Assembly Rule III, Sec 1(e) BILL NUMBER: LBD 89168-02-4 SPONSOR: Brodsky TITLE OF THE BILL: CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing an amendment to article 3 of the constitution, creating an independent commission to redraw state legislative districts. PURPOSE OR GENERAL IDEA OF BILL: This amendment would create an independent commission to apportion Senate and Assembly districts. SUMMARY OF SPECIFIC PROVISIONS: The amendment specifically requires:

• that the independent commission draw the Senate and Assembly districts, • the legislature appoint members to the independent commission, and • that the legislature approves the commission's plan.

JUSTIFICATION: Redistricting (reapportionment) is done every ten years (coinciding with the US Census) to ensure that legislative districts are drawn to reflect the principle of one person, one vote. Currently, redistricting is controlled by political parties and special interests to guarantee that their interests are protected. This process is not a fair or equitable way to protect citizen representation. PRIOR LEGISLATIVE HISTORY: New bill--2004 FISCAL IMPLICATIONS: None. EFFECTIVE DATE: Resolved (if the Senate concur), That the foregoing amendment be referred to the first regular legislative session convening after the next succeeding general election of members of the assembly, and in conformity with section 1 of article 19 of the constitution, be published for 3 months previous to the time of such election.


submitted in accordance with Assembly Rule III, Sec 1(e) BILL NUMBER: LBD 89157-02-4 SPONSOR: Brodsky TITLE OF THE BILL: CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing amendments to sections 1, 2, 5, 6 and 8 and adding a new section 10 to article 2 of the constitution, in relation to elections. PURPOSE OR GENERAL IDEA OF BILL: The purpose of the amendment is to reform the electoral process in New York. This amendment has two goals:

1. The amendment makes provisions for the development of a system of campaign finance reform which will ensure that the electoral process be fair, democratic and relatively free from the control of special interests.

2. Amends the draconian restrictions on voting and registration by liberalizing the right to vote.

SUMMARY OF SPECIFIC PROVISIONS: Section 1 amends section 1 article 2 by eliminating property qualifications in voting. Section 2 amends section 2, article 2 by liberalizing the absentee ballot provision of the Constitution by giving the right for citizens to vote by absentee ballot without reason. Section 3 amends section 5, article 2 by allowing citizens to register to vote at any time up to the election. Section 4 amends section 6, article 2 by requiring the legislature to provide a system or systems of registration. Section 5 amends section 8, article 2 changes the political party driven process of choosing board of elections, to a merit selection process. Section 6 amends article 2, by adding a section 10 that would require that the legislature enact laws removing undue influence and concentrated wealth from elections. JUSTIFICATION: Current law allows the imposition of a property qualification in certain special district elections. This amendment would eliminate this inequitable requirement. This provision will also take political parties out of the oversight of elections, replacing them with an impartial civil service board.

Currently the State Constitution is silent with regard to campaign contributions and expenditures. This amendment will raise this important issue to constitutional status. Finally, the amendment eliminates the antiquated and unfair voting and registration requirements in the State Constitution. Many states now do not require that absentee voters provide a reason such as sickness. We should not have a constitutional restriction on absentee voting. Moreover, the amendment eliminates the requirement that citizens must register to vote ten days before the elections. Most states do not require this overly restrictive requirement to participate in the most democratic exercise. PRIOR LEGISLATIVE HISTORY: New bill. FISCAL IMPLICATIONS: None. EFFECTIVE DATE: Resolved (if the Senate concur), That the foregoing amendment be referred to the first regular legislative session convening after the next succeeding general election of members of the assembly, and in conformity with section 1 of article 19 of the constitution, be published for 3 months previous to the time of such election.

III. Executive and Legislative Reform

A. Legislative

1. Unicameral Legislature 2. Bill Request and Vote

3. Conference Committees

B. Executive

1. Reorganization 2. Public Authorities

3. Lieutenant Governor


submitted in accordance with Assembly Rule III, Sec 1(e) BILL NUMBER: LBD 89162-03-4 SPONSOR: Brodsky TITLE OF THE BILL: CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing amendments to sections 1 and 14 or article 3 of the constitution, in relation to the reorganization of the legislature. PURPOSE OR GENERAL IDEA OF BILL: This amendment will consolidate both the Assembly and Senate into one house. SUMMARY OF SPECIFIC PROVISIONS: Section 1 consolidates the Assembly and Senate into one legislative body consisting on 100 members. JUSTIFICATION: There is no historical or practical justification for the continuation of a two-house legislature. Checks and balances are necessary between the branches of government, not within them. Unlike the United States Senate, the New York State Senate districts are not representative of political jurisdictions (such as counties), but merely larger representations of individuals. As a result of this phenomenon, the two houses of the New York State Legislature are duplicative because they represent the same people—the only difference is that the Senate represents a larger population. The current system leads to unnecessary conflict and waste of scarce resources. A one house legislature will eliminate needless duplication and delay and save taxpayers millions of wasted dollars and hours of time in the operation of two legislative houses; it will speed up the budget process and facilitate the adoption of timely budgets; and, it will create a more open and accountable legislature that will be more accessible and responsive to the people. PRIOR LEGISLATIVE HISTORY: New bill. FISCAL IMPLICATIONS: None. EFFECTIVE DATE: Resolved (if the Senate concur), That the foregoing amendment be referred to the first regular legislative session convening after the next succeeding general election of members of the assembly, and in conformity with section 1 of article 19 of the constitution, be published for 3 months previous to the time of such election.


submitted in accordance with Assembly Rule III, Sec 1(e) BILL NUMBER: LBD 89159-01-4 SPONSOR: Brodsky TITLE OF THE BILL: CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing an amendment to section 14 of article 3 of the constitution, in relation to requiring appropriate legislative committee to act upon a bill at the request of the sponsor PURPOSE OR GENERAL IDEA OF BILL: This amendment will constitutionally require that due consideration be given to legislative proposals. SUMMARY OF SPECIFIC PROVISIONS: Section 1 will require that upon request of the sponsor of a bill, the committee to which such bill was referred shall vote on the proposal. Moreover, such requests on the floor or each legislative house must also be voted upon. JUSTIFICATION: New York's legislative process is ranked as one of the worst when it comes to openness and democratic procedures. One of the main problems is bill consideration. Currently, the process by which a bill moves through the legislature depends largely upon the rules adopted by both houses and the discretion of leadership and committee chairs. The concentration and centralization of control unduly impedes the legislative process. This amendment will ensure that all legislative proposals receive due consideration. PRIOR LEGISLATIVE HISTORY: New bill. FISCAL IMPLICATIONS: None. EFFECTIVE DATE: Resolved (if the Senate concur), That the foregoing amendment be referred to the first regular legislative session convening after the next succeeding general election of members of the assembly, and in conformity with section 1 of article 19 of the constitution, be published for 3 months previous to the time of such election.


submitted in accordance with Assembly Rule III, Sec 1(e) BILL NUMBER: LBD 89159-01-4 SPONSOR: Brodsky TITLE OF THE BILL: CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing an amendment to section section12 of article 3 of the constitution, in relations to conference committees. PURPOSE OR GENERAL IDEA OF BILL: This amendment will require that conference committees be implemented to reach decisions on legislation such as the budget. SUMMARY OF SPECIFIC PROVISIONS: The amendment would specifically require:

• the conference committees be composed of four members from each house, • the committee will deliberate to reach a consensus, • the committee's work will be done in public, • that the consensus reached by the committee be accepted or rejected in whole part

and not altered by either house, • that conference committee shall keep convening until both sides reach consensus.

JUSTIFICATION: Conference committees are a valuable, efficient and fair way for bicameral legislatures to reach consensus. Most states, as well as the United States Congress, employ the conference committee to resolve house differences. Other states, such as Florida, have a constitutional provision for conference committees. See: Fla. Const. Art. III, § 4. A constitutional requirement calling for conference committees will help end some of the gridlock in the budget process as well as ensure that significant policy agreement is reached. PRIOR LEGISLATIVE HISTORY: New bill. FISCAL IMPLICATIONS: None. EFFECTIVE DATE: Resolved (if the Senate concur), That the foregoing amendment be referred to the first regular legislative session convening after the next succeeding general election of members of the assembly, and in conformity with section 1 of article 19 of the constitution, be published for 3 months previous to the time of such election.


submitted in accordance with Assembly Rule III, Sec 1(e) BILL NUMBER: LBD 89158-01-4 SPONSOR: Brodsky TITLE OF BILL: CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing amendments to section 5 of article 4 and to section 2 of article 5 of the constitution, in relation to the powers and duties of the lieutenant-governor and creating a temporary commission on state administrative reorganization. PURPOSE: This amendment will remove the power of the lieutenant-governor to act as governor when the governor is absent from the State and provides for the creation of a commission to prepare recommendations on the reorganization of the executive department. SUMMARY OF PROVISIONS: Section 1 amends the power of the lt.-gov. Section 2 creates the commission on executive reform. JUSTIFICATION: This bill will remove arcane provisions giving the lieutenant-governor power as governor when the governor is out of state. Modern communication and travel have eliminated such provision to the State Constitution. Currently, the Constitution limits the number of departments under the control of the governor to twenty. This provision was included in the Constitution in response to span-of-control studies which suggested that a single individual could supervise no more than twenty people efficiently. This limit has been circumvented over the years by calling additional executive functions by names other than departments and placing them organizationally in the executive department. This has created and administrative executive branch which is confusing and unnecessarily complicated. The establishment of a commission to make recommendations for the reorganization of the executive department will give our state the opportunity to look for a more efficient way of dealing with this issue. LEGISLATIVE HISTORY: New Bill - 2004 FISCAL IMPLICATIONS: Undetermined EFFECTIVE DATE: Resolved (if the Senate concur), That the foregoing be referred to the first regular legislative session convening after the next succeeding general election of members of the assembly, and, in conformity with § 1 of Article XIX of the constitution, be published for three months previous to the time of such election.


submitted in accordance with Assembly Rule III, Sec 1(e) BILL NUMBER: LBD 89168-01-4 SPONSOR: Brodsky TITLE OF THE BILL: CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing an amendment to section 5 of Article 10 of the constitution, in relation to prohibiting the establishment of certain new public corporations and providing for the dissolution of certain public corporations. PURPOSE OR GENERAL IDEA OF BILL: This amendment would eliminate public corporations, such as public authorities. SUMMARY OF SPECIFIC PROVISIONS: Amends Article X, section 5 of the New York State Constitution. Specifically the amendment would:

• eliminate the power of the legislature to create new public corporations but allow localities to establish, and

• dissolve existing public corporations a year after the amendment's enactment. JUSTIFICATION: Article X of the Constitution was the first attempt to regulate public authorities constitutionally. Public authorities are public corporations as defined in Article X, § 5. The courts have stated that public authorities are independent autonomous public corporations created by special acts of the legislatures. See Long Island R. Co. v. United Transportation Union 425 NYS 2d 518 (1980). There are currently more than 40 public corporations. While public authorities have been able to create great public works, there has been a significant downside to the creation of public authorities throughout the State. In the failed convention of 1967, delegates realized that authorities lack any accountability and that authorities were able to circumvent restrictions placed upon them. The Citizen's Budget Commission's Report The Palisades Principles (issued in February of 2004) notes that there needs to be greater a financial accountability for public authorities. However, even with constitutional and statutory changes, public authorities find ways around law. Moreover, the power gained by Robert Moses embodies the fundamental problems with authorities—authorities have public missions but are able to isolate themselves from traditional democratic pressure. PRIOR LEGISLATIVE HISTORY: New bill--2004 FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: Resolved (if the Senate concur), That the foregoing amendment be referred to the first regular legislative session convening after the next succeeding general election of members of the assembly, and in conformity with section 1 of article 19 of the constitution, be published for 3 months previous to the time of such election.

IV. Direct Petition and Response


submitted in accordance with Assembly Rule III, Sec 1(e) BILL NUMBER: LBD 89165-02-4 SPONSOR: Brodsky TITLE OF BILL: CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing and amendment to the constitution, in relation to direct petition and response. PURPOSE: Creates a system of direct citizen petition and legislative response. SUMMARY OF PROVISIONS: Creates a new Article XX of the state constitution titled "Direct Petition and Response." Specifically, it grants citizens the power to directly petition and receive a response from the government. The petition and response works as follows:

• Petitions, focusing on a single issue or policy must be signed by 10% of the total vote cast for the previous general election for governor.

• The proposal, with the requisite number of signatures, must be accepted or rejected by the legislature within forty days.

• The legislature has the right to amend or substitute similar language. • If the policy is accepted by the legislature (majority vote in both houses), the

governor must act on it. If the governor signs it, it becomes law. If not, it is vetoed and the legislature may override the governor's objection.

JUSTIFICATION: Interest groups have a formal institutional mechanism to petition government, i.e. lobbying--average citizens, however, do not. The right for the citizens to directly petition their government is fundamental democratic principle. Seventeen states have some constitutional requirement for petition and response. Six states have some statutory provisions for petition and response. The National Conference of State Legislatures' (NCSL) Initiative and Referendum task force recommended this direct petition and response model for states that do not currently have any direct form of participation. See: NCSL, Final Report and Recommendations of the NCSL I & R Task Force. According to the NCSL, the direct petition and response model, was the best form of citizen participation in the policymaking process, while maintaining a strong representative form of government. The reason for this recommendation, and not direct initiative and referendum is because most initiative and referendum movements are ruled by large moneyed interests. Initiative and referendum movements controlled by large moneyed interests are not reflective of the general will. In other states, such as Pennsylvania, legislators have introduced similar statutory petition and response provisions. See: Penn. Senate Bill 331 of 2001. This model of constitutional direct petition and

response is the first of its kind in the nation. Such direct participation rejuvenates the democratic spirit and brings people back into the system. LEGISLATIVE HISTORY: New Bill - 2004 FISCAL IMPLICATIONS: Undetermined; however, average costs in other states range between $70,000 and $100,000. EFFECTIVE DATE: This act shall take effect immediately; provided that the provisions of section two of this act shall not take effect unless and until the question proposed in section one of this act shall have been submitted to the people at the general election to be held in the next succeeding November after the effective date of this act, and shall have received a majority of all votes cast for and against it at such election. Upon approval by the people section two of this act shall take effect immediately. The ballots to be furnished for the use of the voters upon the submission of section one of this act shall be in the form prescribed by the election law, and the proposition or question to be submitted shall be printed in the following form: "Shall there be a convention to revise the constitution and amend the same?"

V. Code of Ethics


submitted in accordance with Assembly Rule III, Sec 1(e) BILL NUMBER: LBD 89164-01-4 SPONSOR: Brodsky TITLE OF BILL: CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing an amendment to the constitution, in relation to codes of ethics. PURPOSE: This amendment would require each branch of state government and political subdivisions of the state to establish and abide by a code of ethics. SUMMARY OF PROVISIONS: Section 1: Adds a new section 15 to article 13 of the constitution that requires all public officials to abide by a code of ethics. The amendment would also establish a constitutional ethics commission. JUSTIFICATION: Several states including Hawaii (HRS Const. Art. XIV, § 1) and Florida (Fla. Const. Art. II, § 8) have a constitutional requirement that public officers abide by a code of ethics. Other states such as Oklahoma (Okl. Const. Art. XXIX, § 1) have a constitutional commission on ethics in government. A series of scandals by public officers have called for stronger statement of State policy to ensure that public officers uphold the integrity and law of their office. This amendment raises the importance of ethics to a constitutional level. LEGISLATIVE HISTORY: New Bill - 2004 FISCAL IMPLICATIONS: Undetermined EFFECTIVE DATE: Resolved (if the Senate concur), That the foregoing be referred to the first regular legislative session convening after the next succeeding general election of members of the assembly, and, in conformity with § 1 of Article XIX of the constitution, be published for three months previous to the time of such election.

VI. Call For a Constitutional Convention

A. Calling the Convention B. Reforming the Delegate Selection Process


submitted in accordance with Assembly Rule III, Sec 1(e) BILL NUMBER: LBD 18576-05-4 SPONSOR: Brodsky TITLE OF BILL: AN ACT to provide for the submission to the people of a proposition or question to convene a constitutional convention. PURPOSE: This bill would place on the next ballot of the general election the question, "Shall there be a convention to revise the constitution and amend the same?" SUMMARY OF PROVISIONS: Section 1: Declaration and findings. § 2. Requires that the question, "Shall there be a convention to revise the constitution and amend the same be placed on the next general election ballot as allowed under Article XIX, section 2 of the State Constitution. §§ 3 and 4: Process and voting. JUSTIFICATION: New York's Constitution is a fundamental document that performs three vital roles. It organizes the government, establishes the fundamental rights and liberties of the People and articulates the basic values and principal concerns of the people that they wish their government to address. Periodic review of the Constitution is absolutely critical. New York is one of a handful of states that possess this important constitutional Clause. Such reviews correct deficiencies and strengthen the governing process. As part of our acceptance of the social contract embodied by our Constitution, periodic review and democratic citizen participation is necessary to truly have a fair, efficient and modern representative document. As Thomas Jefferson stated:

And, lastly, let us provide in our constitution for its revision at stated periods...Each generation is as independent as the one proceeding, as that was of all, which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness; consequently, to accommodate to the circumstances in which itself, had received from its predecessors; and it is for the peace and good of mankind, that a solemn opportunity of doing this every nineteen or twenty years, should be provided by the constitution; so that it may be handed on, with periodic repairs, from generation to generation, to the end of time, if anything human can so long endure.1

1 Letter from Thomas Jefferson to Samuel Kercheval (July 12, 1816) in THOMAS JEFFERSON WRITINGS 1395, 1402 (Library of America ed., 1984).

As Jefferson envisioned, state constitutions should be revisited every nineteen or twenty years or for "periodic repairs." Throughout history, the Constitution, either by convention or amendment, has been altered to structurally reform the inefficiency of governmental institutions or to expand the rights of the People. Recent dysfunction in government vis a vis the budget process and other institutional failures illustrate the need to revisit New York's Constitution to remedy and provide "periodic repairs." Nine conventions have taken place over the course of the State’s history. Out of those conventions have come profound and expanded rights for all New Yorker’s. The first convention convened in White Plains in 1777. At this convention the first State Constitution was drafted. Other conventions have produced significant expansion of rights and reformation of governments. For example, the Bill of Rights and the Governor’s veto power were added to the Constitution at the convention of 1821. The convention of 1846, the extension of the franchise and the transfer of many appointive offices to elective one’s was added to the Constitution. At the convention of 1894, a provision that required legislation to age for at least three days prior to being put to a vote was ratified and the Blaine amendment (prohibiting State funding to parochial schools) was approved. The last convention was held in 1967 and the new Constitution was subsequently defeated. 1997 was the last year that voters got to decide whether or not to hold a convention. LEGISLATIVE HISTORY: New Bill - 2004 FISCAL IMPLICATIONS: Undetermined EFFECTIVE DATE: This act shall take effect immediately; provided that the provisions of section two of this act shall not take effect unless and until the question proposed in section one of this act shall have been submitted to the people at the general election to be held in the next succeeding November after the effective date of this act, and shall have received a majority of all votes cast for and against it at such election. Upon approval by the people section two of this act shall take effect immediately. The ballots to be furnished for the use of the voters upon the submission of section one of this act shall be in the form prescribed by the election law, and the proposition or question to be submitted shall be printed in the following form: "Shall there be a convention to revise the constitution and amend the same?"


submitted in accordance with Assembly Rule III, Sec 1(e) BILL NUMBER: LBD 18741-01-4 SPONSOR: Brodsky TITLE OF THE BILL: AN ACT to amend the election law, the legislative law, the public officers law, and the state finance law, in relation to the nomination and election of delegates to a constitutional convention PURPOSE OR GENERAL IDEA OF BILL: Reforms the constitutional convention's delegate selection process. Specifically the bill:

• Creates a public finance system for delegate elections, • Reforms the delegate election process by substituting a system whereby each voter

votes for one candidate instead of three, and • Makes it easier for citizens to gain access to the delegate election ballot.

SUMMARY OF SPECIFIC PROVISIONS: Section 1: Legislative findings. § 2. Amends § 6-136 of the election law to require that petitions for the office of constitutional delegate-at-large be signed by not less than five thousand or 2.5%, whichever is less, of enrolled voters. It also requires petition for Senate district delegates to be signed by five hundred people or more or 2.5%, whichever is less, of the enrolled voters in the Senate district. § 2 also liberalizes the petition process. It allows petitioners to correct technical problems with their petition and moreover, provides that petitions be in substantial compliance with the law. § 3. Amends section 7-104 of the election law specify the delegate voting process. Specifically, each voter may vote for one person in his or her senate district. The top three vote getters from the district are elected delegates. For at-large delegates, the top three vote getters are elected to the convention. § 4. Amends section 14-114 of the election law to reform campaign finance. Specifically, restricts large centralized campaign contributions. §§ 5 and 6 establish the "State Public Financing for the Election of Delegates to a Convention to Revise and Amend the State Constitution. Section 11 creates the fund. §§ 7-10 reforms the lobbying law to extend it to the constitutional convention.

JUSTIFICATION: One of the most important democratic provisions in our Sate Constitution is the constitutional convention. The question of whether there should be a constitutional convention is automatically placed on the general election ballot every twenty years. The question can also be placed on the ballot by law. In the course of history, conventions have been convened both ways. However, to ensure the process by which different persons and groups are represented at the convention several key changes are necessary. I. The Delegate Selection Process The delegate selection process was added to the State Constitution in 1894. Under section 2, of Article XIX of the Constitution voters elect three delegates from every Senate district and 15 at-large delegates. Currently there are 61 Senate districts. Thus, with the 15 at-large spots there are a total of 183 delegates. A. Voting Rights Act Issue Currently, Article XIX, section 2 is more than likely in violation of the Federal Voting Rights Act. The Voting Rights Act prohibits any "voting qualification or prerequisite to voting or standard, practice, or procedure...which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." 42 USC 1973, § 2. See: 42 U.S.C. § 1973. Specifically, § 1973 of the Voting Rights Act states that members of a minority group should not "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." Id. It is important to note that there does not need to be the intent to dilute minority voting—if the mechanism in effect dilutes minority voting the process violates the Voting Rights Act (what the law calls the "totality of circumstances"). Id.2 A concern under the Voting Rights Act is vote dilution—or electoral mechanisms aimed at reducing minority representation. Specifically, multi-member districts (where voters vote for multiple candidates, is highly suspect for it was historically used as a way for racial majorities to dominate the electoral process. See: Lani Guinier, "The Triumph of Tokenism," Michigan Law Review, 89, 1077, 1094. While the Supreme Court has not ruled that multi-members are always unconstitutional, data suggest that in New York, the delegate selection process would be. See: Fortson v. Dorsey, 397 U.S. 73 (1965) and Burns v. Richardson, 384 U.S. 73 (1966). Below illustrates that the current Senate delegate selection process dilutes minority voting. Recently, however, the Supreme Court has opined that multi-member district voting, "generally pose greater threats to minority voter participation in the political process than do single-member." It appears that the use of multi-member Assembly districts would be constitutional, but the use of multi-member Senate districts is not.

2 This was in large part a reaction to the Supreme Court's ruling in City of Mobile v. Bolden. Bolden held that motivation of racial discrimination was a necessary ingredient to conclude a Voting Rights violations.

According to Professor Richard Briffault's analysis examining the 1997 convention call he observed that African Americans held 5 of the 61 Senate seats or 8.2% of the total, while African Americans held 21 of the 150 Assembly seats—14% of the total. The total population of African Americans in New York is about 16% so the use of Assembly districts would be more representative of the African American and other minority populations. Temporary State Commission on Constitutional Revision, qtd in Decision 1997: Constitutional Change in New York; Gerald Benjamin and Henrik Dullea, eds. page 411. While using Assembly Districts or other similar methods may be the preferable method of delegate selection, it is much more difficult to accomplish. Such a change would require a constitutional amendment. However, other approaches exist that would create a more open and fair process without a constitutional change. One remedy would be to statutorily create a system of limited voting.

B. Semiproportional Voting—Limited Voting (Single-Member Districts) Precedence shows that single-member districts are preferable, not only for ease and ability to statutorily change the process, but also because minority groups bringing action in courts often cite single-member districts as the appropriate remedy. See: Thornburg v. Gingles, 478 U.S. 30 (1986). Other states (North Carolina, Alabama, Connecticut and Pennsylvania) have implemented limited voting for local elections with great success. See: Moore v. Beaufort, 936 F. 2d 159 (4th Cir. 1991) (approved settlement that included a multimember district with limited voting in North Carolina); Orloski v. Davis, 564 F. Supp. 526, 536 (M.D. Pa. 1983)(allowed limited voting in Pennsylvania judicial elections); LoFrisco v. Schaffer, 341 F. Supp. 743 (D. Conn. 1972)(upheld limited voting for Connecticut Board of Elections); and Kaelin v. Warden, 334 F. Supp. 602 (E.D. Pa. 1971)(upheld limited voting to elect County Commissioners in Pennsylvania). Thus, limited voting under this bill would satisfy the Voting Rights Act and be more representative and empower minority communities. Finally, limited voting in multimember districts has other benefits. First, limited voting it easier to understand and execute. Other systems, like Single Transferable Voting (where voters vote by listing their order of preference), may be even more representative, but such systems are highly confusing and, moreover difficult for local polling places to implement. II. Ballot Access It is well know that New York has draconian ballot access laws. Currently, the delegate election process would fall under the State election law for other statewide and Senate offices. See: Election Law, Article 6. First, the number of signatures required to get onto the ballot is unusually high. This is compounded by the fact that often people try to get two to three times the amount of signatures required to make sure they have enough valid signatures. Second, even the most microscopic mistake results in the entire petition being

invalidated. Wrong colored paper; cover sheets and binding mistakes would void petitions. In 1994 the Temporary Commission on Constitutional Convention voiced similar concerns. The Commission stated:

There can be little dispute that the complex and sometimes technical construction and application of the election law favors those most familiar with it...Some have expressed concern that it would be relatively more difficult for those who are not a part of an existing political party or organization to become candidates for convention delegates. This is not only a criticism of the election law but also an expression of the view that, regardless of the rules applicable to everyday political elections, there should be afforded to persons not normally involved in partisan politics a greater and more open opportunity to become involved in the special process of constitutional revision.

Temporary State Commission on Constitutional Revision, The New York State Constitution: A Briefing Book. Rockefeller Institute of Government (1994) at 49. We remedy this very strict process by: providing a grace period, reducing the number of signatures, and change the legal standard from strict compliance to substantial compliance. III. Campaign Finance Reform Public financing of the delegate selection process is absolutely critical. Since greater access must be afforded to those that do not normally participate in politics, public financing is critical to provide average citizens the resources to participate. Moreover, campaign reform is needed to level the playing field. The State Commission on Government Integrity and other groups have called for reforms in New York generally, especially trying to avoid a "government industry" dominance in the convention process. As the Temporary Commission on Constitutional Revision stated that:

Democratic governmental processes should be inclusive, not exclusive. The Commission does believe that if a constitutional convention is held, its membership should represent the great diversity of New York...This includes not only our racial and ethnic diversity, but also the broad spectrum of education and experience and the range of vocational backgrounds present in New York.

Decision 1997: Constitutional Change in New York, Benjamin and Dullea, eds. Rockefeller Institute (1997) at 432. Finally, and most importantly, this reform effort does not ban participation. While some call for prohibiting elected officials and others from participating, this bill does not take this approach. The approach creates the opportunity to allow a diverse cross-section of New Yorkers to participate. As the Commission concluded that "the way to achieve such a

[diverse] convention...is not by banning legislators or others, but by altering the process of delegate selection to make it more likely that less politically experienced candidates can successfully compete in the process..." Id. PRIOR LEGISLATIVE HISTORY: New bill--2004 FISCAL IMPLICATIONS: None. EFFECTIVE DATE: Resolved (if the Senate concur), That the foregoing amendment be referred to the first regular legislative session convening after the next succeeding general election of members of the assembly, and in conformity with section 1 of article 19 of the constitution, be published for 3 months previous to the time of such election.

Appendices

Appendix A: Listing of Current Introduced Amendments

Appendix B: Legal Analysis of the Budgetary Process

APPENDIX A

2004 BOTH HOUSES BILLS THAT PROPOSE TO AMEND THE NEW YORK STATE CONSTITUTION

BILL NUMBER

SPONSOR SUBJECT

1 A379 Christensen Equal pay for equal work 2 A906 Brodsky Working people's rights 3 A964 Thiele Budget adoption 4 A1000 McEneny Electronically written bills 5 A1156 Wirth Removal of judges 6 A1257 Nesbitt Budget process 7 A1264 -- S4665 Stephens -- Lachman Power of initiative and referendum 8 A1279 Barraga Default budget 9 A1282 Barraga Contracting of debt 10 A1301 -- S3107 Barraga – Meier Increase of revenue 11 A1316 Brodsky Corporate responsibility 12 A1531A --

S1771 Smith -- Seward Right to hunt, trap, and fish

13 A1636 Destito Tax rates and Budget bills 14 A1741 Spano Armed forces' payment 15 A1757 -- S675 Smith -- Rath Local governments 16 A1760 -- S636 Thiele -- Lavalle Creation of Peconic county 17 A1922 Higgins Budget adoption 18 A1938 Thiele Emergency appropriation bills 19 A2061 Lafayette Reviewing rules and regulations 20 A2179 -- S1357 Lavelle -- Marchi Armed forces payment 21 A2224 Tedisco Budget adoption 22 A2227 Tedisco Safe schools 23 A2233 Tedisco Constitutional convention 24 A2237 -- S1063 Acampora – Padavan Election of public service commissions 25 A2240 Calhoun Initiative and referendum 26 A2326 Tedisco Budget adoption 27 A2327 Tedisco Late budget penalties 28 A2400 -- S2824 Smith -- Saland Right to keep and bear arms 29 A2457 McDonald Civil service credit 30 A2549 Wirth Appropriation bills 31 A2605 Calhoun Local governments 32 A2637 McDonald Forest preserve lands 33 A2691 -- S1439 Acampora -- Volker Retirement fund board of trustees 34 A2771 Prentiss Constitutional amendments

35 A2775 Wirth Limits terms in office 36 A2805 Wirth Appropriation bills 37 A2841 -- S150 Seminerio -- Maltese Power of initiative and referendum 38 A2866 -- S598 Seminerio -- Kuhl Limits governor's terms in office 39 A2872 -- S86 Seminerio -- Maltese Increases legislators' terms in office 40 A2900 Dinowitz Courts, supreme court and selecting

justices 41 A2921 -- S1324 Miller -- Saland Crime victims' rights 42 A3000 -- S151 Seminerio -- Maltese Parental rights 43 A3088 Prentiss Veteran civil servants 44 A3100 Prentiss Crime victims' rights 45 A3380 -- S3863 Casale - Hassell-

Thompson Budget bills

46 A3402 Schimminger Contingency budget 47 A3565 Townsend Recall of statewide elected public

officials 48 A3819 Lopez Judicial districts in New York City 49 A3900 Burling Highway and bridge trust fund 50 A3901 Burling Local governments 51 A3968 Grannis Environmental protection 52 A4117 -- S580 Bacalles -- Kuhl Initiative and referendum petitions 53 A4148 -- S1424 Bacalles -- Kuhl Terms of office 54 A4237 Sidikman Victim's bill of rights 55 A4406 Straniere Election officers 56 A4407 Straniere Initiative and referendum 57 A4416 Straniere Regents of the State of New York 58 A4440A Brennan Selection of judges and justices 59 A4468 Kirwan Equal rights 60 A4469 Kirwan Rendering of a verdict by a jury 61 A4499 -- S3692 Stringer --

Oppenheimer Budget expenditure

62 A4501 -- S3627 Stringer -- Oppenheimer

Appropriation bills

63 A4506 Schimminger Gubernatorial inability and succession 64 A4593 -- S2584 Schimminger -- Kuhl Lieutenant-governor 65 A4689 Kirwan Limitation on state disbursement 66 A4691 Kirwan Terms of judges 67 A4763 -- S3634 Stringer --

Oppenheimer Appropriation bills

68 A4838 -- S738 A4855 --A6335

Lifton -- Farley -- Pretlow -- Galef

Free public libraries

69 A5063 Kaufman Capital or other infamous crimes 70 A5382 Silver Pre-kindergarten 71 A5510 Lifton Absentee voting

72 A5800 -- S4666 Stringer -- Lachman Voter registration requirement 73 A6087 -- S2774 Tocci -- Volker Civil service exam 74 A6176 Kaufman Supreme court justices 75 A6333 Galef Medical assistance 76 A6345 Magnarelli Borrowing by state 77 A6354 Rivera P. Family court and matrimonial actions 78 A6427 Galef Non-partisan apportionment

commission 79 A6497 -- S4128 Galef -- Robach Electronically written bills 80 A6500 -- S2112 Galef -- Morahan Current services budget 81 A6501 -- S2291 Galef -- DeFrancisco Budget adoption 82 A6527 Kaufman Protection against unreasonable

searches 83 A6675 Galef Override of a governor's veto 84 A6698 Hooker Right to keep and bear arms 85 A6715 -- S548 Perry -- Andrews Free common schools 86 A6784A Brown State spending limit 87 A7149 Hoyt Local governments 88 A9491A Gunther A. Casino gambling 89 A9790 Kirwan Initiative, referendum, and recall 90 A9791 Kirwan Casino gambling 91 A9829 Tonko Public service commission 92 A9911 -- S5395 Seminerio -- Little Court of claims 93 A10361 Weprin Lieutenant-governor 94 A11231 --

S7317 Rules (Silver) – Bruno

Budget submission

95 A11644A DiNapoli State forest preserve 96 S1A Bruno Budget process 97 S163 Morahan Budget submission 98 S566 Breslin Legislative bills 99 S993 Trunzo Evidence in criminal cases 100 S1007 Paterson State debt 101 S1991 Paterson Capital program and financing plan 102 S2290 DeFrancisco Loans of state credit 103 S3311 Schneiderman Apportionment commission 104 S3896 Duane Limits office terms 105 S4317 Oppenheimer Appropriation bills 106 S4427 Krueger Equal pay for equal work 107 S4663 Lachman Comptroller duties 108 S4684 Krueger Budget bills 109 S4686 Krueger Legislative bills 110 S4687 Krueger Sponsorship of bills 111 S4688 Krueger Bills debate and deliberation

112 S4689 Krueger Bill with sponsors' memoranda 113 S4690 Krueger Constitutional conventions 114 S5069 Bonacic New York City housing jurisdiction 115 S5426 Bruno Initiative and referendum 116 S6126A Bonacic Casino gambling 117 S6138 Larkin Casino gambling 118 S6194 Lavalle District court judge 119 S7539 Little Forest preserve lands 120 S7753 Duane Civil rights protection

Memorandum: The Legal Bases of the Budget Stalemate

Historically, New York and most other states have implemented executive budget processes. This allows the Governor to submit a unified budget balancing the needs of the citizenry and state, from the Governor's statewide perspective. The public then expects that the Legislature will accept, reject or amend the Governor's proposed budget, with fundamental policy decisions being the constitutional responsibility of the Legislature. Recently however, New York's governors, supported by intermediate court decisions, have sought to gather to the Executive Branch almost unlimited power to control budgetary policy. This is new, inconsistent with practice in most other states and a fundamental cause of the budget breakdown in Albany. The two instruments of this attempt to eviscerate the Legislature's constitutional role to set policy are the Governor's broad definition of the constitutional term “alter,” that effectively forbids legislative change to Executive spending priorities, and the assertion that the Governor may line-item veto individual words and phrases in non-appropriation bills. Both of these asserted powers are unconstitutional. The two cases that currently support the Governor's position are Silver v. Pataki and Pataki v. Legislature, although we strongly believe they were wrongly decided. These cases are under appeal. Briefly stated, the Governor, supported by these court decisions, takes the position that once he submits an appropriation, or a bill that contains policy and guidance on how the appropriation may be spent (“when, how and where” language), the Legislature may not alter that appropriation or language, and the Legislature may not reject it and substitute its own version of the policies that ought to guide state spending. If for example, the Governor sends appropriations and policy language on school aid that says, “the school district of Smith shall receive no money for operation of its schools,” the Legislature has no constitutional power to remove that phrase, nor to reject the entire school aid program and instead enact its own version without the offending language. The language used by the Governor and the Courts is unequivocal. Silver v. Pataki states that the Legislature is constitutionally forbidden to alter gubernatorial appropriation bills. The Court’s holding was that “the explicit language of § 4 [prohibits] alterations by any means of ‘an appropriation bill submitted by the governor’ . . .” Silver v. Pataki, 769 N.Y.S.2d 518, 523 (App. Div. 2003)(citing to NY Const, art. VII, § 4) [Silver v. Pataki III]. The Court reached this result because it read Article VII, § 4 as providing, exclusively, “the three permissible methods of alteration by the Legislature,” which are to strike out, reduce or add items of appropriation. Id. at 522-23. Pataki v. Legislature states that under the New York Constitution’s budgetary scheme, the Governor is solely responsible for formulating fiscal policy. The Court’s holding was that “the intent of the framers in enacting the executive budget was to place in the hands of the Governor the task of formulating State fiscal policy, with ultimate approval of that policy left to the Legislature, albeit with severe restrictions upon how it can alter the appropriation and spending plans of the Executive . . .” Pataki v. New York State Assembly, 738 N.Y.S.2d 512, 526 (Sup. Ct.

2002) [Pataki v. Legislature I]. In these cases the Governor argued that: ”his appropriation bills can contain language directing the "when, how and where" of spending even if those directions conflict with existing law; pursuant to section 4 of article VII the Legislature may not alter the Governor's appropriation bills by deleting the "when, how and where" language as it is limited to striking out or reducing items of appropriation or including single-purpose separate items of appropriation; the remedies of the Legislature upon disagreeing with the "when, how and where" set forth in the Governor's appropriation bills are to delete the proposed appropriation completely or refuse to act upon the bills compelling, at some point, a compromise . . .” Pataki v. Legislature I, at 524. The Court agreed with the Governor’s position stating that “when, how or where” directory language, whether in an appropriation bill or not, is part of an item of appropriation, and that there is “no constitutional basis for the Legislature's alteration of [non-appropriation bills].” Silver v. Pataki III, at 523. The Court further stated that the “substantive modifiers” included in the Governor's appropriation bill are subject to the protection of the New York Constitution. Silver v. Pataki II at 894. The Courts recognized that under their reading of the Constitution the Legislature’s only remedy would be to create a stalemate. That is precisely what has happened. “However prolonged and contentious the budget process becomes, we are of the opinion that defendants' proper constitutional action was to refuse to pass plaintiff's appropriation bills and induce negotiations (see Saxton v Carey, supra at 550), not to alter and amend them and then substitute their own spending plans in the form of 37 single-purpose bills in violation of NY Constitution, article VII, § 4. Alternatively, ‘the remedy is to amend the Constitution to prescribe new standards for budget-making and appropriations’" (Hidley v Rockefeller, supra at 446 [Breitel, J., dissenting]). Pataki v. Legislature II, at 894. Those who are mystified as to why the budget process has broken down and repeated stalemates have occurred can find answers in these cases. As long as the Governor asserts his ability to set spending policies over the opposition of the Legislature, and the Legislature insists on its constitutional responsibility to set economic and fiscal policy, the Courts’ prediction of stalemate will be accurate, even as they point out that “the remedy is to amend the Constitution. “They can simply fail to enact into law the Governor's appropriation bills and the resulting deadlock, if a compromise cannot be reached, will cause public pressure to build to the point where these political questions will be settled "in the voting booth" and "not in the courtroom." Pataki v. Legislature I, at 528. The Governor further argues that he may veto a word of language in a non-appropriation budget bill. The Courts have so far not reached that issue, on the grounds that the limitations on the Legislature’s power to alter the Governor’s priorities or substitute its own policies for the Governor’s render the question moot. Considered together, the decisions in these two cases and the Governor's line-item veto power – if expanded to match his assertions in Silver v. Pataki -- would strip away most if not all of the

Legislature's constitutional role in setting budgetary policy. The only remedy for the current dysfunctional arrangement is a rebalancing of budgetary power that preserves the Governor’s ability to offer his executive budget , the right of the Legislature to change his policies, and the subsequent rights of veto and override.

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