New York Politics: A Tale of Two States [3 ed.] 1501767267, 9781501767265

Citation preview

NEW YORK POLITICS

NEW YORK POLITICS

A TA L E O F T W O S TAT E S Third Edition

E dward V. S chneier, A ntoinette Pole, and A nthony M aniscalco

CORNELL UNIVERSITY PRESS Ithaca and London

Copyright © 2023 by Cornell University All rights reserved. Except for brief quotations in a review, this book, or parts thereof, must not be reproduced in any form without permission in writing from the publisher. For information, address Cornell University Press, Sage House, 512 East State Street, Ithaca, New York 14850. Visit our website at cornellpress​.­cornell​.­edu. First edition published 2000. Second edition published 2010. Third edition published 2023 by Cornell University Press Library of Congress Cataloging-­in-­Publication Data Names: Schneier, Edward V., author. | Pole, Antoinette, author. | Maniscalco, Anthony, 1966– author. Title: New York politics : a tale of two states / Edward V. Schneier, Antoinette Pole, and Anthony Maniscalco. Description: Third edition. | Ithaca [New York] : Cornell University Press, 2023. | Includes bibliographical references and index. Identifiers: LCCN 2022023036 (print) | LCCN 2022023037 (ebook) | ISBN 9781501767265 (hardcover) | ISBN 9781501767272 (paperback) | ISBN 9781501767296 (pdf ) | ISBN 9781501767289 (epub) Subjects: LCSH: New York (State)—Politics and government. Classification: LCC JK3416 .S25 2023 (print) | LCC JK3416 (ebook) | DDC 320.9747—dc23/eng​/20220815 LC record available at https://lccn.loc.gov/2022023036 LC ebook record available at https://lccn.loc.gov/2022023037

C o n te n ts

List of Tables, Figure, and Boxes  vii Preface to the Third Edition  ix

1. The States of New York 2. New York in the Federal System

1 31

3. Parties, Po­liti­cal Changes, and Elections 62 4. Power, Pluralism, Public Opinion, and the Permanent Government

98

5. New York’s Living Constitution, and Beyond 131 6. Strug­gles for Power, Position, and Access 169 7. Making Public Policy

212

8. Taxing, Spending, and Public Policy Priorities 254 9. New Directions for New York Notes  323 Index  349

300

Ta b l e s , F i g u r e , a n d B ox e s

­Tables 1.1  Demo­cratic percentage of the major-­party gubernatorial vote 1.2  New York by the numbers 2.1  New York State’s court system 3.1  Seats and votes in the New York State legislature 3.2  Divided government in New York 5.1  Local governments in New York 8.1  How New York State income taxes are calculated 8.2  Changing sources of New York City revenue

9 16 51 82 86 158 276 294

Figure 2.1  Federal grants to the states, 1960–2020

38

Boxes 1.1  The Purchase of Manhattan Island 3 1.2  Ah, Wilderness! 15 1.3 The Federalist Papers 18 2.1  New York’s Justice Courts 53 2.2  Interstate Compacts and State Law 57 2.3  The Port Authority of New York and New Jersey 59 3.1  The Mischief of Fusion 65 3.2  The Rise and Fall of the IDC 85 3.3  Giving Away Your Vote 89 3.4 ­Toward a One-­Party State? 96 4.1  The Job of the Lobbyist 108 4.2  Group Representation in Albany 112 vii

vi i i

Ta b l es , F i g u r e , a n d B ox es

4.3  Protesters as Po­liti­cal Players 5.1  New York’s Landed Aristocracy 5.2  The Powers of the Governor 6.1  Party Discipline 6.2  The Tools of Leadership 7.1  The Agony of Judicial Choice 7.2  Bail Reform 8.1  Reading a Bud­get 9.1  Controlling Corruption 9.2  Diversity in New York State Government

117 134 140 174 195 239 246 268 305 320

P r e face to th e Th i r d E d i ti o n

The famous opening lines of Charles Dickens’s Tale of Two Cities describe the p­ eople of France as living on the eve of revolution: “It was the best of times, it was the worst of times.” Much the same could be said about the p­ eople of New York in the years following the pandemic of 2020–2022. While COVID-19 affected every­one, its disproportionate impact on se­niors, the poor, and members of minority groups was symbolic of the deep divisions that continue to make the story of New York a tale of two states. In New York, the stock market soared, corporations recorded rec­ord profits, and hundreds of thousands of city dwellers found or retreated to second homes. Yet residents in crowded homes and neighborhoods—­often conditions coinciding with poverty—­were disproportionately affected by both the disease and its economic impact. T ­ hese dichotomies served to underscore and exaggerate the socioeconomic and po­liti­cal divisions that have long characterized the state. New York is the third-­richest state in the United States and among the top twenty in its percentage of ­people below the federal poverty line. The state ranks fifth in the percentage of its residents who have advanced college degrees but also ranks f­ourteenth in the number of high school dropouts. Half of New York’s population lives in the nation’s most densely populated urban area, but the state also ranks twenty-­fifth in agriculture and has the largest wilderness area east of the Mississippi River. In the 2020 elections, the Demo­ cratic candidate for president (Biden) won New York County (Manhattan) with 87 ­percent of the vote; the Republican (Trump) won 72 ­percent in rural Wyoming County (Warsaw, New York). The state is number one in health funding per ­family but ranks seventh in the percentage of its population described as “medically underser­viced.” While New York is often described as a state low on f­ amily values, it has the second-­lowest divorce rate of the fifty states. “New York is not Amer­ic­ a,” the novelist Sinclair Lewis once said, to which the residents of many other states would add a fervent “amen.” For more than half a ­century, more Americans have been moving out of New York than moving to it. Yet ­there is a simultaneous sense in which the Empire State is seen as the quintessence of the United States—­not so much as it is as what ix

x

P r e fa c e to t h e T h i r d E d i t i o n

it is becoming. From the Metropolitan Opera to Saturday Night Live; Saratoga ­horse racing to Madison Square Garden; theater on Broadway to Chautauqua; the art galleries of SoHo and the Museum of Modern Art to Cooperstown and Lake Placid—­New York has endured, for better or worse, as the cultural capital of the New World. New York has more colleges than any other state. Wall Street remains the financial capital of the nation and the global economy. At the same time, the state’s upstate cities remain virtually detached from the economic boom of the twenty-­first ­century. New York’s farms are disappearing at an accelerating rate, and its accumulated debt is the nation’s highest. New York’s history is studded with innovations: the Erie Canal was the young nation’s largest public works proj­ect in its early years. Al Smith’s initiatives in enacting minimum wage and worker safety rules anticipated the New Deal by twenty years. Robert Moses’s empire of highways, bridges, and tunnels and a governing structure to go with them became prototypes for all fifty states. The state was a pioneer in creating the first equal opportunity commission. New York has earned its share of dubious achievement awards as well. The financial collapse of New York City in the 1970s continues to serve as a symbol of urban decline. Although state taxes are comparatively low, New York’s combined state and local tax burdens are among the nation’s highest. ­Were New York a country, it would have the world’s thirteenth-­highest gross domestic product ( just b­ ehind South K ­ orea and ahead of Australia). If the state ­were a corporation, it would be tenth in Fortune magazine’s ranking of the country’s top five hundred corporations. Yet more books have been published on Nigerian politics in the past ten years than on New York’s. The state does not require ­either its secondary or college students to study its government (as two larger states, Texas and California, do). Only thirty-­six of the state’s media outlets have full-­time correspondents in the state capitol. Moreover, New York’s po­liti­cal system is almost uniquely opaque. Its disciplined legislative parties conduct most of their business in the closed confines of the party conferences. The state’s bud­gets are increasingly unreadable. An unusually large part of its funds are delegated to so-­called public authorities that largely govern themselves beyond the view of most citizens. It is not a coincidence that New Yorkers prob­ ably know less about their own state’s government than do the residents of any other state.

This Book The normal challenge of writing a text on New York politics—­and of keeping it current—is one of combining the academic approach of the traditional



P r e fac e to t h e T h i r d E d i t i o n

xi

lit­er­at­ ure on state politics with more journalistic attempts to look b­ ehind the facade of an increasingly closed system. The typical state politics text is a largely descriptive account of state institutions, researched almost entirely from statistics, government documents, and other public sources. New York Politics combines this kind of research with a series of continuing interviews with public officials, policy advocates, and journalists involved in day-­to-­day governance. John Brian Murtaugh, one of the original coauthors of this book, was a committee chair and member of the State Assembly for twenty-­one years. This book was his idea. Asked by Ned Schneier, then chair of the Po­liti­cal Science Department at the City College of New York, to teach a course on New York politics, Murtaugh was disappointed to find that the existing textbooks—­ while technically accurate—­conveyed ­little of what he saw on the ground. As a student of legislatures, sometime Albany lobbyist, and professor-­in-­residence for the state Assembly’s internship committee, Schneier was glad to establish the connection. Murtaugh not only brought the insights of twenty years in the backrooms of the state capitol to the proj­ect, but he also provided access to ­people who would not other­wise have spoken candidly to most academics. As the longtime chair of the unusually bipartisan Committee on Alcohol and Substance Abuse, moreover, his personal and po­liti­cal friendships crossed party lines. Although we have followed academic conventions in not quoting ­people in ways that reveal their identities, we gratefully acknowledge their candor and insights. Former Senate majority leader Ralph Marino and onetime Speaker Mel Miller—­though not all of their par­tic­u­lar insights remain cogent—­helped inform the content of the book and educated us on the kinds of questions we needed to ask. For the first two editions, we conducted more than sixty interviews with legislators, government workers, lobbyists, and members of the press. Many of t­ hese dialogues have continued and found their way into this third edition. When Schneier and Murtaugh w ­ ere asked to write the 2010 second edition of New York Politics, the task seemed daunting. Brian was no longer active in politics, and Ned had moved into other fields of research. We ­were fortunate to recruit Toni Pole, who was not only teaching courses on state politics but was ­adept and comfortable in the new area of electronic media and its impact on politics. ­After Brian’s death, Toni and Ned reached out to Tony Maniscalco, whose work on local governments deepened our insights along that dimension and whose work with internship programs in both Albany and New York City brought new sources and insights into our work. This remains a tale of two states. The dichotomies persist, as does the system’s basic anatomy (and many of its per­sis­tent pathologies). A ­ fter almost forty years of divided government, the po­liti­cal game has changed, with solid Demo­cratic

xi i

P r e f a c e to t h e T h i r d E d i t i o n

majorities now in seemingly firm control of both h ­ ouses of the legislature and ­every statewide elected position. For most of ­those four de­cades, the beginning of wisdom in Albany was that the core of state politics occurred in the convening of “three men in a room”—­the governor, Senate majority leader, and Speaker of the Assembly. It was never quite that ­simple. At the time of this writing in 2022, it was even more complicated, if only b­ ecause one of the key players—­for the first time in state history—­was a w ­ oman: Governor Kathy Hochul. Moreover, the dynamic of both politics and policy has changed. The bud­ get ­adopted in 2021 included the largest increase in spending in modern history. By staying in touch with key players in the Albany community, we are comfortable in our understanding of its normal operations and power profiles, but t­ hese are not normal times. In early 2021, as we w ­ ere putting the finishing touches on the manuscript, preliminary numbers on the pandemic-­influenced bud­get estimated the potential deficit at anywhere from $2 to $20 billion. A few weeks l­ater, the state’s seemingly invincible Governor Andrew Cuomo—­who faced numerous charges of sexual harassment, ethics violations while writing a book, and covering up COVID-19 death rates in se­nior citizen homes—­was u ­ nder investigation by the Justice Department, with calls for his resignation and even pos­si­ble impeachment. Writing about con­temporary affairs always entails the risk of being overtaken by events, and ­there is ­every reason to believe that the next few years, at least, w ­ ill continue to be unusually unstable, if only in terms of the economic aftershocks of the pandemic. As difficult as it is to anticipate the force and direction of t­ hese changes, the rules of the game are likely to remain pretty much the same, and ­these are what the core of this book is all about. In the preface to the second edition, we wrote that “for the first time in perhaps a ­century New York stands upon the fault lines of real change.” ­Those fault lines took nearly a de­cade actually to move the earth, but move it they have, and we have done our best in the pages that follow to describe this emerging po­liti­cal landscape. If parts of this book are outdated (almost as they w ­ ere written), our goal is to provide a road map to understanding the change. Like an online map, we hope it can tell you how to get from A to B. It is up to you to discover what scenes you rec­ord along the way. We offer this volume as an effort to facilitate your understanding of New York’s government: what’s right about it, what’s wrong, and what can be done to make it better. In addition to our many sources in and around the government, we owe par­tic­u­lar debts to our families and friends, colleagues, and research assistants who commented or lent support on par­tic­ul­ ar chapters or ideas. We also want to share our gratitude with the many students who have asked hard questions about New York’s po­liti­cal establishment, animating and informing this volume. Above all is our debt to Brian Murtaugh, whose basic idea this book was.

NEW YORK POLITICS

C h a p te r   1

The States of New York

In 1524, a Florentine explorer, Giovanni da Verrazano, sailed through the narrows that now bear his name and “discovered” New York Harbor. Despite his glowing reports, some eighty-­five years went by without further Eu­ro­pean exploration. As Mark Twain wrote of a comparable period in the history of the Mississippi River, the Hudson, along with its magnificent harbor, “was left unvisited by whites during a term of years which seems incredible in our energetic days.”1 Between Verrazano’s first sighting and Henry Hudson’s more fruitful venture in 1609, Copernicus revolutionized our view of the solar system, Shakespeare wrote most of his plays, Henry VIII divorced or executed all of his wives, and the Reformation began in Eu­rope. In t­hose same years, Ivan the Terrible began and ended his bloody rule as czar of Rus­sia, Rubens and Rembrandt painted their greatest masterpieces, and Machiavelli’s The Prince was published. By 1609, the Spanish and Portuguese conquests of South Amer­i­ca ­were nearly complete and Magellan’s feat of circumnavigating the globe had become almost commonplace. Only then did a small group of Dutch settlers arrive at the southern tip of Manhattan Island.

1

2 C h a pt e r  1

Growth and Development: The ­People of New York Given the riches of North Amer­i­ca, it is difficult to understand why the Eu­ro­ pe­ans took so long to appreciate them. Distracted by the more obvious wealth of the Incas and Aztecs, diverted by the lure of spices and other exotic products from the Orient, and encumbered by religious conflict, Eu­ro­pe­ans came to North Amer­i­ca almost as an afterthought. The Dutch, in par­tic­u­lar, never paid much attention to their outpost in the New Netherlands, leaving it largely in the hands of the privately held Dutch West India Com­pany, whose settlements w ­ ere almost exclusively maintained as points of contact for the fur trade with the Native Americans. The Dutch did not arrive on virgin lands. ­Human beings had lived in what is now New York for five thousand years. Although it is tempting to contrast, the ravages of Eu­ro­pean settlement with an age of unsullied wilderness, as Henry Thoreau did at Walden Pond, “the real choice is not between two landscapes, one with and one without a ­human influence; it is between two ­human ways of living, two ways of belonging to the ecosystem.”2 The Native Americans first contacted by the Europeans—­the ones from whom Peter Minuet allegedly “bought” Manhattan Island—­were largely Algonquians along the Eastern Seaboard. As the Dutch pushed up the Hudson River, they encountered the feistier Nations of the Iroquois—­Senecas, Cayugas, Onondagas, Oneidas, and Mohawks—­then approaching the height of their influence. As the lust for furs and land increased, conflicts intensified, and the more aggressive En­glish and French settlers eventually pushed the Iroquois and Algonquian Nations into a long period of decline.

Patterns of Settlement and Their Legacies If the Dutch ­were slow to ­settle in the New World, the British ­were not. By 1664, when they captured New Amsterdam, the population of the city had reached barely 1,500, but ­there w ­ ere close to 50,000 settlers in New ­England, including 9,000  in Boston alone. And while the Dutch confined their settlements largely to the Hudson Valley between New Amsterdam and Albany, British colonists w ­ ere encroaching from Long Island, Connecticut, and Mas­sa­chu­setts. When the British fleet demanded and received Governor Stuyvesant’s surrender of the New Netherlands, it was as much a reflection of demographics as of military might.



T h e Stat e s o f N e w Yo r k

3

Box 1.1  The Purchase of Manhattan Island The origins of most ­great cities are wrapped in stories and myths of heroic sacrifice and divine guidance. The enduring story of New York City is that of a mercantile transaction in which the wily Dutch supposedly “bought” Manhattan Island for $24. The amount and nature of this transaction have been questioned in a variety of ways. B ­ ecause the Native Americans who allegedly made the deal had no tradition of land owner­ship and ­were not even residents of the island they supposedly sold, it is not clear that the Dutch actually got the best deal. Sometimes, however, the real meaning of myths and rituals is best discerned not by focusing on the stories and events themselves but on ­those who observe and recount them. The story of New York’s purchase, as it contrasts the cunning of the white settler with the primitive lust of the natives for beads and trinkets, resonates enduringly with tales of the shrewd city slicker conning the rural rube. It also serves to at least partly absolve subsequent New Yorkers from potential feelings of guilt: unlike other colonies, the tale implies, New York was founded in a commercial deal rather than through violent conquest. Fi­nally, as Burrows and Wallace point out, “as is usually the case with myths and legends, the notion that New York is rooted in a commercial transaction gets at a deeper kind of truth.”3 Unlike many of the world’s ­g reat cities, New York was to become neither the military base of an empire nor the seat of religion or government. “Its civic chieftains would be merchants, bankers, landlords, ­lawyers; its mightiest buildings, office towers. . . . ​As the $24 saga suggests, New York would become a city of deal-­makers, a city of commerce, a City of Capital.”

Th e Ea r ly Settl e m e n t s Despite their minority status and rather swift assimilation into the dominant Anglo culture, the Dutch legacy is impor­tant. “New York City had a unique sequence of development among American colonial cities which cannot be understood without recognizing the enduring impact of the Dutch society and culture. . . . ​The Dutch introduced institutions, laws, and customary practices, altered the landscape, set the pattern for interaction with native ­peoples and imported Africans, and selectively transplanted their culture.” 4 The Dutch

4 C h a pt e r  1

culture of New York was an amalgam in which, as early as 1644, eigh­teen distinct languages w ­ ere spoken.5 Indeed, the fledgling city called New Amsterdam was a true melting pot, less distinctively Dutch or British than prototypically “American.” Unlike the settlers in New E ­ ngland, the Dutch did not arrive as religious communities and tended to be more tolerant of diversity, separating religion from citizenship. This spirit of tolerance became a defining characteristic of New York City, where “the pluralistic nature of New York’s social structure virtually assured a similarly heterogeneous immigrant population.”6 No other En­glish colony in the Amer­i­cas faced the challenge of absorbing and including an already established Eu­ro­pean culture. In further contrast with the New ­England colonies or neighboring Pennsylvania and New Jersey, the governors of New York inherited a system in which slavery was firmly established but with the added quirk of including more freedmen of African descent than any other colony. In its vast northern regions, New York also was a frontier state constantly encroaching upon the Native Americans, forging westward into new settlements. In developing his frontier theory of American democracy, Frederick Jackson Turner placed par­tic­u­lar emphasis on its roots in the m ­ iddle region of the Atlantic coast, with New York—­more than any other state—­providing the multicultural, commercial, and industrial base from which the new society would emerge.7 New York City’s combination of a magnificent natu­ral harbor and a historic tradition of commerce soon made it a world trade center on a par with the g­ reat commercial cities of the world, but the primacy of trade also helped put New Yorkers at odds with ­those in other colonies (and even at times with the rest of the state). Beyond commerce, the city attracted the cultural amenities that come with it, from opera and ballet to brothels and burlesque. New York City also became the port of entry for millions of immigrants. ­There ­were immigrants who arrived in the United States without passing through Ellis Island, but for almost a ­century a majority of the settlers entered through the port of New York.

Fro m t h e Revolution to the Civ il War On the eve of the American Revolution, New York already had begun to differentiate itself from the emerging new nation and to embody what it was becoming. ­Because it was a center of commerce, most of it with Britain, many of New York’s leading citizens ­were appalled by the idea of rebellion. Once the War of In­de­pen­dence had begun, the British sent their main force to New York and used the city as their headquarters. With the city the seat of British power and hub of Loyalist settlement and the Iroquois allied with the British, “no other state suffered more for the cause of in­de­pen­dence than did New



T h e Stat e s o f N e w Yo r k

5

York. . . . ​Nearly one-­third of the engagements of the war w ­ ere fought on New York soil. New York City, which controlled most of the commerce of the state, was continuously in ­enemy hands from 1776 to 1783. Two major fires destroyed many buildings in the g­ reat seaport. ­After British evacuation the population of the city fell to ten thousand, half of what it had been on the eve of revolution.”8 Both city and state ­were quick to recover. Lands confiscated from Loyalists ­were widely distributed. The tribes of the Iroquois—­loosed from British protection—­lost virtually all of their territory. But in­de­pen­dence did not dramatically affect the distribution of po­liti­cal power. A constitution ­adopted at the outset of the revolution created an elected legislature, eliminated the veto power of the royal governor, and secured the basic ­legal rights of citizens. The constitution, however, was s­ ilent on the issue of slavery, conferred no rights on Native Americans, and restricted voting rights to a handful of male property ­owners. Nor did it modify the aristocratic land distribution of the Dutch patroon system in the Hudson Valley. While homesteaders w ­ ere setting up small farms across confiscated Native American lands in the west, and ­others claimed the estates of fleeing Loyalists, one New York farmer in six remained a tenant. The huge estates of the Livingstons, Van Rensselaers, and Clarks remained intact u ­ ntil the 1840s. The death of the leasehold system came less from po­liti­cal agitation than from the move west that superseded it. The trickle of New En­glanders who began settling in New York became a torrent. The acreage of improved land increased from about a million in 1784 to 5.5 million in 1821, almost all of it on owner-­occupied homesteads.9 Meanwhile, urban areas ­were exploding in size with the completion of the Erie Canal in 1825. Rochester qua­dru­pled its population in a single de­cade and became the nation’s first boomtown. Buffalo and Syracuse grew almost as rapidly as the canal linked the riches of the ­Great Lakes basin with the Atlantic Ocean, and New York City soon became the nation’s largest metropolis. The canal route connecting the Hudson and Mohawk Rivers with the G ­ reat Lakes has had a continuing impact. As the state’s commerce developed along this corridor, it became the logical route for major railbeds and—­a ­century ­later—­the New York State Thruway. Excluding Long Island, more than 80 ­percent of the state’s citizens still reside in counties that lie along this inverted L-­shaped route. Once it became the first state to burst through the Appalachian Mountain barrier that divided coastal cities from the farms and mineral resources of the Midwest, New York’s ascension to commercial and industrial preeminence was swift. By the eve of the Civil War, New York City was the banking capital of the nation and its industrial leader. Access to capital

6 C h a pt e r  1

was a ­factor in this rise, as was transportation, but nothing fed the boom more than the flow of cheap ­labor through Ellis Island. As a commercial center for the nation, New York was as ambivalent about the Civil War as it had been about the Revolutionary War. Slavery was not abolished u ­ ntil 1827, and the state’s Black population had declined by 1860 to less than 2 ­percent. Three times between 1846 and 1867, the state’s voters refused to approve a constitutional amendment giving Blacks the right to vote.10 Small won­der that the draft riots of 1863, which began as a protest against the ability of the rich to buy exemptions from the military, quickly turned into racist lynch parties. New York had its share of abolitionists and contributed more men and materials to the Union cause than any other state, but the race tensions manifested in the draft riots remain a seldom-­acknowledged part of the state heritage.

Th e Gi l d e d Ag e Early in the nineteenth c­ entury, the state’s largely Dutch and En­glish population was supplemented by a steady flow of Germans escaping war and upheaval in Eu­rope. The Irish potato blight of 1845–1854, which sent more than three million immigrants across the ocean, brought even greater change, adding a largely Catholic group to New York’s religious mix. By the 1880 census, the Irish constituted nearly one-­third of the city’s residents and had become “the first of New York’s ethnic groups to arrive in large enough numbers to establish themselves as a coherent po­liti­cal force.”11 In 1880, self-­made millionaire William Grace became New York City’s first mayor of Irish ancestry. Few of his compatriots did so well. While the Irish and other immigrant groups w ­ ere able to penetrate the city’s po­liti­cal and economic elites, the gap between rich and poor loomed large. The difference between the wealth of the Rocke­fel­lers, Vanderbilts, and Morgans, on the one hand, and the miseries of the urban poor, on the other, was prob­ably as ­great in late nineteenth-­century New York City as anywhere. At the same time upstate New York—­and to some extent New York City—­saw the growth of a m ­ iddle class that was perhaps equally unpre­ce­ dented. “In 1870 New York led all other states in the number of farms and the value of farm property . . . ​and its farm population of over one million constituted the largest single occupational group and nearly one-­fourth of the total population of the state.”12 Even in cities t­here was a rising m ­ iddle class of skilled artisans; merchants; and, t­oward the end of the ­century, clerks and ju­ nior executives. But it was manufacturing—­labor-­intensive, profitable industrial enterprise—­that symbolized the ­future of the nation and increasingly characterized New York. The 1880 census shows that New York became the



T h e Stat e s o f N e w Yo r k

7

first state to manifest an urban majority. The United States did not officially become an urban nation u ­ ntil 1920. For more than 150 years, New York was the nation’s leading industrial state, sometimes accounting for as much as one-­sixth of the country’s total output.13 By the turn of the ­century, when the United States passed G ­ reat Britain and Germany to become the world’s leading economic power, New York was the engine that pulled the train. The influx of industrial wage earners was accompanied by a withering of the farm population. By 1860, “more than 800,000 New Yorkers (one-­fourth of ­those born in the state as of that date) had resettled in the West.”14 A ­century ­later, New York had fallen from first to twenty-­fifth in farm income, focused on such specialty crops as apples and grapes along with dairy products and fresh produce for local markets. If the movement of farmers to the flatter, fertile lands of the Midwest was the logical by-­product of improved transportation and storage systems, the decline in manufacturing had more complex roots.

Th e Tw e n tieth C ­ e n tury In the 1920s, Congress virtually shut off the flow of new immigration to the United States and New York. Many of the immigrants who arrived in the 1890s and early 1900s, meanwhile, came out of the socialist and trade u ­ nion movements of central Eu­rope. As the supply of new ­labor diminished and the militancy of the existing workforce increased, the state became both a cradle of an emerging US u ­ nion movement and an incubator of legislation protecting working ­people. In the 1920s, even as the Harding and Coo­lidge administrations w ­ ere taking the national government in a strongly pro-­business direction, Governor Al Smith of New York submitted bills reducing the workweek to forty-­eight hours, limiting child ­labor, and creating a workers’ compensation system he described—­with considerable justification—as “perhaps the most liberal statute of its kind in the world.”15 The Smith administration also dramatically increased expenditures on education, public works, and parks, with higher taxes an inevitable result. Although the growth of government slowed in the Depression ­under Governor Franklin Roo­se­velt, it took off again when Roo­se­velt became president and Herbert Lehman brought a so-­called ­Little New Deal to Albany. Laws establishing a welfare system, strengthening ­unions, mandating public education u ­ ntil age sixteen, and establishing a minimum wage both complemented and extended similar programs ­adopted during Roo­se­ velt’s New Deal in Washington. The election of Thomas E. Dewey in 1943—­the state’s first Republican governor since World War I—­did not significantly derail this progressive tradition. Extending the system of parkways developed during the Smith, Roo­se­velt, and Lehman years, Dewey developed a turnpike system

8 C h a pt e r  1

(including the state thruway that now bears his name) that became a model for other states. A de­cade ­later, another progressive Republican—­Governor Nelson Rockefeller—­brought New York up to the standards of many other states, making the State University of New York (SUNY) a comprehensive system of higher education. Ironically, it was the Republican Rocke­fel­ler who put through the big tax increases that brought New York into the ranks of the nation’s higher-­burden states. The election of Hugh Carey in 1975 began a period of twenty years in which the Demo­crats controlled the executive mansion (see t­able 1.1). The Carey-­ Cuomo years ­were not marked by the kinds of policy initiatives evident during the tenures of Smith or Rocke­fel­ler, but they essentially continued the state’s support for public works, social welfare, and education. T ­ hese years also ­were distinguished by a series of fiscal crises unmatched since the G ­ reat Depression. New York City’s near bankruptcy in 1975 was the first shock wave of an almost steady series of economic tremors at both state and local levels. Elected in 1994, Republican governor George Pataki was reelected twice on platforms promising tax cuts to stimulate economic development, but his policies did l­ittle to stem the loss of well-­paying jobs that increasingly have afflicted the upstate economy in par­tic­u­lar. Riding a tide of resentment against ­these failures and a national tilt t­oward the Demo­crats, Governor Elliot Spitzer won 71 ­percent of the statewide major party vote in 2006, carry­ing all but two counties. Like his pre­de­ces­sors Governors Cuomo and Pataki, Governor Spitzer also had to work with a legislature divided between the Republicans who controlled the State Senate and the Demo­crats who controlled the Assembly. Thus, despite his impressive election victory, his abbreviated term as governor (ended by scandal in 2008) was short on major achievements. Spitzer was replaced by Lieutenant Governor David Paterson, who had continuing prob­lems dealing with the major recession of 2009, which forced some of the largest cutbacks in spending the state had ever seen. Add some minor scandals, and his 2010 bid for a full term was doomed from the start. Andrew Cuomo—­the state’s attorney general and son of a former governor—­easily won the first of his three terms u ­ ntil he was felled by scandal and replaced by Lieutenant Governor Kathy Hochul. Despite the relatively austere bud­gets of the past four de­cades, New York’s progressive tradition remains relatively secure. Despite his fiscal conservatism, Governor Pataki was ahead of his party and much of the nation on environmental issues, particularly in preserving open lands. David Paterson was the first governor in the nation to openly advocate for laws protecting gay rights (although without success). Andrew Cuomo not only secured passage of a gay rights law but also made New York one of the first states to permit gay marriages. The



T h e Stat e s o f N e w Yo r k

9

­Table 1.1  Demo­cratic percentage of the major-­party gubernatorial vote: 1974–2018 ELECTION YEAR AND WINNER

NEW YORK CITY

SUBURBS

UPSTATE CITIES

UPSTATE RURAL

TOTAL

1974 Carey (Demo­crat)

72

53

58

49

58

1978 Carey (Demo­crat)

70

49

53

44

52

1982 Cuomo (Demo­crat)

70

50

51

39

52

1986 Cuomo (Demo­crat)

80

64

72

59

66

1990 Cuomo (Demo­crat)

73

50

48

43

53

1994 Pataki (Republican)

71

42

38

27

48

1998 Pataki (Republican)

67

35

31

19

41

2002 Pataki (Republican)

58

31

41

28

41

2006 Spitzer (Demo­crat)

86

67

69

62

71

2010 Cuomo (Demo­crat)

84

64

56

57

67

2014 Cuomo (Demo­crat)

82

54

55

43

59

2018 Cuomo (Demo­crat)

85

58

55

42

64

Source: Brewer and Stonecash (2001); figures calculated by the authors from the New York State Board of Elections (2002–2018). Note: Following Mark D. Brewer and Jeffrey M. Stonecash, “Po­liti­cal Parties and Elections,” in Governing New York State, 4th ed., ed. Jeffrey M. Stonecash (Albany: State University of New York Press, 2001), 51, the suburbs are defined as comprising the counties of Dutchess, Nassau, Orange, Rockland, Suffolk, and Westchester. Upstate cites include the county election returns from Albany, Broome, Erie, Monroe, and Onondaga Counties. Upstate rural includes all other county election returns.

state’s environmental laws, consumer protection laws, and rules governing civil rights and liberties remain among the nation’s most progressive.

Ne w Yo r k in the Twe n ty -­F irst C ­ ent ury If the Industrial Revolution in the United States began in New York, the country’s industrial decline started ­there as well. The massive and continuing shift from the production of goods to the provision of services—­characteristic of what has been called “postindustrial society”—­hit New York first, and it hit hard. The total number of production workers in manufacturing industries fell from roughly two million in the 1960s to fewer than one million in 1990, five hundred thousand in 2010, and four hundred thousand in 2020. As industry continues to decline, the ser­vice sector’s share of nonfarm employment—­led by health care and hospitality—­has grown to 91 ­percent of total employment.16 The decline in manufacturing—­particularly the virtual demise of industrial production from once-­giant firms such as Kodak, General Electric, and IBM—­was especially hard on upstate New York. Buffalo fell from being one of the ten largest metropolitan areas in 1900 to seventy-­second ­today.17 Unlike the areas surrounding New York City, upstate’s ser­vice sector growth has not been vigorous. In part, the decline

10 C h a pt e r  1

of manufacturing “results from a combination of its high average annual wages, high unemployment and workers’ compensation benefits, high state taxes, and poor education systems.”18 Without underestimating t­ hese f­ actors, the decline is a more complex mixture of global and state economic and demographic transformations that have become the central preoccupation of the state’s twenty-­ first ­century politics. New York is not Amer­i­ca. It is more diverse and more divided in many ways than any of its forty-­nine counter­parts (­table 1.2).

Ethnicity, Class, and Race The economic changes described above did not occur in a vacuum. “­Every impor­tant aspect of the United States demographic situation is linked to ­every other.”19 Immigrants came to New York ­because ­there ­were jobs; their presence as a pool of cheap l­abor attracted new employers; their fertility rates, economic achievements, marriages, divorces, and death rates changed the roles of governments and further altered the opportunity structures for new immigrants. At both state and national levels, the policy consequences of such transformations continue to resonate, and as Washington increasingly shifts the financial burden and policy responsibility for many spending programs to the states, regional variations loom larger. The composition of a state’s population strongly affects its government’s willingness and ability to deal with policy prob­lems. As the population ages, for example, the taxpaying workforce shrinks at the same time as costs for programs for se­nior citizens grow. New York’s nonimmigrant population continues to age. In rural Hamilton County, for example, nearly one person in three is over sixty-­five years of age. In contrast with that of most other states, however, the aging of New York has been increasingly offset by a continuing influx of immigrants, the vast majority of whom are between twenty-­one and sixty-­five. Se­niors are seldom immigrants, and the proportion of the foreign-­born who are over sixty-­five is significantly lowered by a tendency for many of them to return home for their golden years. At the other end of the age spectrum, more than one-­third of ­those ­under eigh­ teen have at least one immigrant parent. Po­liti­cally and eco­nom­ically, this makes for a volatile mix. The young, largely foreign-­born newcomers live mainly in large urban areas, while older, nonimmigrant groups are scattered throughout urban, rural, and suburban areas. Only 11 ­percent of New York City residents are over sixty-­five, compared to 13 ­percent in the rest of the state. The competition for government resources thus takes on geographic and ethnic as well as po­liti­cal dimensions.



T h e Stat e s o f N e w Yo r k

11

Old Newcomers and New Immigrants The major ancestral groups succeeding the early Dutch and British settlers w ­ ere largely German and Irish in the mid-­nineteenth c­ entury; Italian and Eastern Eu­ro­pean around the turn of the ­century; and African American and Puerto Rican in the years surrounding World War II. Liberalization of the immigration laws in 1965 brought a new wave dominated by Asians, Ca­rib­bean Blacks, and a highly diverse group of Latinos. None of ­these groups has been randomly distributed ­either occupationally or by place of residence. As recently as 1950, more than half of the New York City’s residents ­were foreign-­born or of foreign or mixed parentage. Although the city was the home to more than 70 ­percent of the state’s foreign-­born white inhabitants, upstate cities such as Rochester (45 ­percent) and Buffalo (44 ­percent) also ­were the homes of first-­and second-­ generation immigrants. T ­ hese figures have changed dramatically. New York City is still 36 ­percent foreign-­born, and some of its older suburbs, such as Port Chester (46 ­percent), Yonkers (30 ­percent), and Brentwood (37 ­percent), have comparable numbers of foreign-­born residents, but the proportions of foreign-­ born residents in Buffalo and Rochester have fallen below 10 ­percent. In recent years, the state’s overall population has been deceptively stable, growing by a modest 4 ­percent from 1980 to 2000 and by slightly more to a total of 20.2 million in 2020. This seeming stability masks two de­cades of enormous mobility. As the number of Asians nearly tripled and Latinos increased to 19 ­percent from 9 ­percent, ­these two groups alone added nearly 1.5 million persons to the state’s total, while a similar number of non-­Hispanics and non-­ Asians left the state. Upstate, in rural areas in par­tic­u­lar, young ­people are seeking economic opportunity elsewhere. Only a handful of upstate counties are attracting new residents, and many are losing population. In the wake of the 2009 recession and the devastating Hurricane Sandy, the population north of the metropolitan area actually declined between 2010 and 2018, with twelve upstate counties each losing more than 2 ­percent of its population. Around New York City and in some upstate areas, ­there have been dramatic demographic shifts. While some of the more successful older immigrants moved “up” to nearby suburbs in New York, New Jersey, and Connecticut, a number of ­those who w ­ ere less successful—­African Americans and Puerto Ricans in particular—­moved back to their southern and Ca­rib­bean roots. In both cases, their places w ­ ere taken by new immigrants, who have settled almost entirely in and around New York City; more than 90 ­percent of the state’s foreign-­born reside in the metropolitan area. They are a very diverse group. Although almost half of ­today’s immigrants come from South Amer­ic­ a and the Ca­rib­bean, recent immigrants hail from more than 150 nations.

12 C h a pt e r  1

In the short term, the COVID-19 crisis produced a new and unpredictable shift in population mobility. Rather than work at home from cramped city apartments, many individuals and families moved to or bought country homes and resettled elsewhere. Relatively stable real estate markets in counties such as Columbia, Delaware, and Greene—­many more than two hours from New York City—­saw sales (and prices) rise dramatically in 2020. How many of ­these exurbanites w ­ ill remain in ­these new residences, return to the city, or maintain two homes is unclear, but ­there is ­little doubt that the impact on office spaces, the residential market, schools, and the overall economy of both urban and rural areas is significant.

Wealth and Poverty In the half c­ entury from the late 1960s to the pre­sent, the incomes of the wealthiest Americans ­rose dramatically while t­ hose of the less affluent remained relatively stagnant. The average income of the poorest 20 ­percent of the population—­$19,305 in 1967—­rose to $24,368 in 2017, an annual gain of just over $100 dollars a year.20 Meanwhile, the top 10 ­percent increased their ­house­hold income from $96,781 in 1967 to $179,072 in 2017, an annual increase of $1,645. The same pattern appeared in New York State but to an even greater degree, especially at the highest levels, where the top 1 ­percent averaged more than $2 million in income, almost fifty times that of the remaining 99 ­percent. Between the 2009 recession and 2018, the top 1 ­percent captured ­every dollar of income growth in the state.21 The gap between the earnings of the highest-­ income families and lower-­income groups in New York is the highest in the fifty states. Wealth is even more concentrated than income, with the top 1 ­percent holding nearly 40 ­percent of h ­ ouse­hold assets. ­These disparities have impor­tant regional and ethnic correlatives. Long Island’s suburban Nassau County, at one extreme, contains significant pockets of poverty, but its 2017 median (the number at which half are above and half below) ­house­hold income of $105,744 was $27,000 above the state average, roughly three times that of the Bronx ($36,593) and nearly two and a half times that of rural Chautauqua County ($44,304). And the income differentials within counties or even within towns are even more striking. In Suffolk County, for example, ­house­hold median income ranged from as high as $208,750 in Old Field to as low as $39,571 in Riverside. ­These variations in income reinforce related differences of nearby census tracts. (A census tract is an area of roughly one or two thousand h ­ ouse­holds forming a distinct neighborhood.) In the city of Troy, for example, residents of one east-­side tract with a median income of more than $70,000 had an average



T h e Stat e s o f N e w Yo r k

13

life expectancy of eighty-­five years. More than 90  ­percent ­were high school gradu­ates. A mile to the north, median income was less than $25,000, 29 ­percent did not complete high school, and expected life spans ­were seventy years. Beyond statistics, “unstable housing, low income, unsafe neighborhoods and substandard education are all associated with poorer health and poorer quality of life,” as well as with “racial and ethnic minorities.”22 Local variations aside, the state’s basic economic division appears most pronounced between upstate and downstate. As the nation’s financial center, Manhattan (New York County) leads the way, with more than half of its residents earning $146,019. The Bronx aside, the counties surrounding the city also are well-­off with h ­ ouse­hold incomes in five counties averaging more than $90,000. Upstate, only one county (Saratoga) boasts a median income of more than $90,000, and in ten counties, the median income falls below $50,000. Nathan Glazer, whose early studies of race and ethnicity virtually defined the field, once reflected on his own work and ­others as follows: In the 1950s and 1960s, it was reasonable to proj­ect that the newest entrants into New York’s complex ethnic mix, blacks and Puerto Ricans, would in time rise in the city’s economic structure and become only modestly differentiated, in economic position and po­liti­cal power, from ­those who had preceded them—­just as the Jews and Italians before them ­rose, in the economic and po­liti­cal spheres, to the level of the Irish and Germans who had preceded them. This was the expectation voiced by Oscar Handlin in The Newcomers, and it was my expectation in Beyond the Melting Pot. But it ­hasn’t happened.23 Just as civil rights laws ­were changing the job atmosphere for minorities, the market changed. Between 1950 and 1970, the net job increase in New York City was 275,000, with 575,000 new jobs in the ser­vice sector more than offsetting the loss of close to 300,000 jobs in industries that traditionally served as springboards to the success of less-­educated immigrant groups.24 The largely unskilled Blacks and Latinos who flooded the city seeking industrial jobs w ­ ere left out in the cold. Thus, while the median income of non-­Hispanic whites was $68,000 in 2017, the comparable figures for Blacks ($42,500) and Latinos ($41,700) ­were considerably lower. By the 1990s, as John Mollenkopf writes, “class had colors, in the sense that whites worked predominantly in the professional and managerial occupations and most skilled trades, whereas African Americans and Puerto Ricans ­were clustered in ser­vice work.”25 ­These changes had other implications in rural areas and smaller upstate cities, such as Elmira and Utica, similarly suffering from a changing job market. ­Those with college degrees continue to enjoy a considerable bump in income when

14 C h a pt e r  1

they move to urban areas, as many upstate residents did. For the less educated, conversely, “middle-­skill” jobs as clerks, salespersons, and factory workers no longer offer that promise, especially with the demand for high-­skilled technology jobs.26

Upstate, Downstate, and In Between The north-­south split in California is cultural and increasingly ethnic but has few economic correlatives; Colorado, Illinois, Michigan, and Pennsylvania display significant conflicts between urban centers with large minority populations and surrounding areas of very dif­fer­ent ethnic, economic, and po­liti­cal hues. But New York City stands alone among American cities in its relationship to the state of which it is a part. Size alone distinguishes it: New York City’s population exceeds that of the nation’s next three largest cities combined and has accounted for roughly half of the state’s population for more than a ­century. In almost ­every way—in its wealth as in its poverty, in its culture and its diversity—­the city is a force too large to ignore. Although t­ here are per­sis­tent differences between the city and the rest of the state, the bound­aries between “upstate” and “downstate,” as New Yorkers use ­these terms, are elusive. The core of New York City, Manhattan Island, is relatively as small in population (about one-­fifth of the city’s total) as it is large in image. Its surrounding boroughs are often at odds with Manhattan, and the bound­aries between Eastern Queens and neighboring communities in Nassau County or between the North Bronx and Westchester are virtually indiscernible. The larger upstate cities such as Rochester and Buffalo have more in common with the Big Apple in some ways than with the small towns surrounding them, while the city’s smallest borough—­Staten Island—­identifies somewhat tenuously with the metropolis and has voted to secede. But if New Yorkers find it difficult to trace the precise geographic boundary between “upstate” and “downstate,” chances are most residents have a fairly precise cultural concept of the division. A citizen of Staten Island—­whatever his feelings about secession—­feels a far closer identity with Manhattan than with Buffalo. And even the resident of Yonkers—­though bordering on the New York City line—is likely to take a certain satisfaction in the fact that he lives in Westchester and not the Bronx. Ninety p­ ercent of the newer immigrants live in or near the city. Almost all of the state’s substantial Jewish population lives within fifty miles of Times Square. And the bulk of the state’s openly gay community is in the city. Unlike the residents of any other US city, New Yorkers are tightly packed into “a staggering 66,835 persons per square mile.”27 New York City, unlike any other place in the state or in the United States, is a vertical



T h e Stat e s o f N e w Yo r k

15

Box 1.2 Ah, Wilderness! While New York is among the most urbanized states in the ­union, even its own residents often fail to realize how vast and thinly populated much of the state is. T ­ here are more than fifty thousand p­ eople per square mile living in Manhattan. Not counting tourists and commuters, each of them has a l­ittle over five hundred square feet, something like the space between the goal line and the fifteen-­yard line at MetLife Stadium. At the other extreme, ­there are 3.1 persons per square mile in Hamilton County. Folks in this area—­just an hour or so north of Albany—­ could each put a thousand football fields on their share of the land and still have room left for parking. T ­ hese patterns are, of course, largely the product of economic and social choices having l­ittle to do with government. New York, however, was the first among the US states to choose to preserve its wilderness heritage. Article XIV, section 1 of the 1894 constitution provides that more than two million acres in the Adirondacks and Catskills “­shall be forever kept as wild forest lands.” To this day, no other state has so sweeping and strong a land conservation provision inscribed in its constitution. Not surprisingly, few other states—­even t­hose that are far more recently and thinly settled—­have better preserved their wilderness areas. ­There are places within the Adirondack Preserve where one can entirely escape the sights and sounds of ­human habitation. You can go so deep into the woods that you ­will neither see the glow of distant electric lights nor hear the faintest rumble of far-­off trucks and trains. ­There is not another place east of the Mississippi River in which this is pos­si­ble.

city, in which ­people live on top of and ­under one another instead of next door. In a nation sometimes said to be governed by the automobile, fewer than half of the city’s adults have ­drivers’ licenses. A strong argument can be made that this is no longer a tale of two states—if it ever ­really was. Cornell University economist Rolf Pendall argues that the state is made up of three broad regional economies. First, New York City’s large, globally connected financial and ser­vice sectors swing widely in response to changing world trends. Its dynamic economy tends both rise and decline more sharply, steepening the entire state’s cycles of boom and bust, absorbing most of the state’s new residents and just as quickly sending ­others out. Second, southeastern New York (including Long Island, the northern suburbs, Hudson Valley, and

16 C h a pt e r  1

­Table 1.2  New York by the numbers: Where New York ranks in comparison with the other forty-­nine states (2018–2020) POPULATION (2020)

20,201,249

4th

Land area

30th

Per capita gross domestic product

1st

Average annual pay

1st

Families living in poverty

14th

Unemployment rate

11th

Percentage of tax returns reporting $500,000 or more

4th

Percentage of tax returns reporting $25,000 or less

21st

Percentage with advanced degrees

5th

High school graduation rate

42nd

Death rate

48th

Percentage overweight or obese

43rd

Percentage of renter-­occupied homes

1st

Percentage Black

10th

Percentage Hispanic

9th

Same-­sex ­couple ­house­holds

4th

65 and older

26th

Teenage birth rate

45th

Abortion rate

1st

Per capita alcohol consumption

31st

Divorce rate

45th

Percentage voting in 2018

40th

Source: Kathleen O’Leary Morgan and Scott Morgan, eds., State Rankings 2020: A Statistical View of Amer­i­ca (Thousand Oaks, CA: CQ Press, 2020).

the Capital District) rather closely mirrors the trends of the nation as a ­whole, gaining in population and enjoying moderate overall job growth but with a continuing switch from higher-­paying jobs in manufacturing to lower-­wage ser­vice sector jobs. Fi­nally, Pendall calls the rest of New York—­its western and northern sectors—­“the third slowest growing state,” noting that if it w ­ ere a state in its own right it would rank forty-­eight out of fifty on a number of indicators.28 Between 2008 and 2017, the city and its suburbs added more than seven hundred thousand private sector jobs (see ­table 1.2). The rest of the state added a total of just fourteen thousand, and if you subtract the gains of its two biggest counties (Erie and Monroe), the area actually had a net loss of jobs. ­Whether we describe New York as embodying a tale of two states or three, the continuing diversity of the state is fundamental to its politics. To understand New York politics, you must first understand the state’s diversity and indeed frag­ mentation. In a long tradition dating back to Dutch New Amsterdam, New York-



T h e Stat e s o f N e w Yo r k

17

ers have been noted for their tolerance of diversity: the streets and stores of Manhattan are prob­ably more ethnically, culturally, and eco­nom­ically mixed than ­those of any place in the world. But this surface of multicultural integration masks the blunt real­ity that “New York City is hyper-­segregated.”29 Urban sociologists have developed an “index of dissimilarity” to define the extent to which dif­fer­ent ethnic groups are distributed among geographic areas. What it shows for New York City is that Black neighborhoods are more purely Black and white neighborhoods more purely white than in almost any other city in the United States.30 Five miles from city neighborhoods where 90 ­percent of the residents live on less than $2,000 a month are neighborhoods where a small apartment rents for $3,000. The suburbs are similarly stratified. Politicians have compounded the fractures of demography by constructing po­liti­cal bound­aries that reinforce rather than transcend ethnic, racial, and economic bound­aries. One result is that very high percentages of black and Latino students remain in intensely segregated and apartheid schools, while white students remain extremely isolated. Data also indicate that as a school becomes more minority, the school w ­ ill also become more low-­income and, as such, is twice as likely to exhibit l­imited educational opportunities and outcomes. We found an extremely disproportionate distribution of low-­income students in schools where a majority of black and Latino students are enrolled. This finding emphasizes the double segregation of race and class that black and Latino students experience. . . . ​Latino and Asian isolation have also increased, while exposure of t­ hese groups to white students has decreased. And fi­nally, unevenness is still very high over the last two de­cades for nearly all racial groups.31 That many of the state’s economic, ethnic, and cultural divisions have regional correlatives intensifies the potential for conflict. T ­ hese divisions are ­reflected in dif­fer­ent relationships with and expectations from government: given the social interdependence that defines their existence, cities need more activist government than do rural areas. The urban economy, for example, requires public transportation systems. While nearly 53 ­percent of prepandemic New York City residents used mass transit to get to work, fewer than 7 ­percent of residents of other parts of the state did. While nearly two-­thirds of New York City h ­ ouse­holds live in rental units, fewer than 27 ­percent of ­house­holds outside the city do. Moreover, the nature and extent of urban social prob­lems requires that nearly two-­thirds of all state spending be allocated to welfare and health care programs. ­These diverse needs generate rural-­urban conflicts over the size and scope of government generally, as well as conflicts over the degree of autonomy that city government should have.32

18 C h a pt e r  1

Demography and Politics In divided socie­ties, a recurring prob­lem is finding sufficient cohesion to make the state governable. The differences between upstate and the metropolitan area, particularly in the context of increasing polarization at the national level, fuel the likelihood of stalemate. Nationally “a marked increase in the frequency of legislative deadlock” has meant that “even when Congress and the president manage to reach agreement on the big issues of the day, t­hese deals are often half-­measures and second bests.”33 Polarized socie­ties are difficult to govern and seldom demo­cratic. Especially in plural socie­ties—­socie­ties that are sharply divided along religious, ideological, linguistic, cultural, ethnic or racial lines into virtually separate sub-­societies—­the flexibility necessary for majoritarian democracy is likely to be absent. ­Under ­these conditions, majority rule is not only undemo­cratic but also dangerous, b­ ecause minorities that are continually denied access to power w ­ ill feel excluded and discriminated against and may lose their allegiance to the regime. . . . ​In the most deeply divided socie­ties . . . ​majority rule spells majority dictatorship and civil strife rather than democracy.34 In his eighteenth-­century defense of the Constitution, James Madison argued that such a “tyranny of the majority” could be avoided by creating a national government of l­imited powers, weaving a series of institutional checks and balances into the structure of the government, and through the social and po­ liti­cal effects of what po­liti­cal scientists now call pluralism.

Box 1.3  The Federalist Papers The reverential tones with which Americans discuss the work of the Founding F ­ athers gloss over one of the most b­ itter debates in the history of our politics. Writing u ­ nder their own names and pseudonyms such as Cato and Brutus, journalists, politicians, and most individuals who attended the constitutional convention vigorously set forth the arguments for and against ratification. With nine of thirteen former colonies needed to ratify the new constitution, the only ­thing all agreed on was that the vote would be close. New York was a particularly impor­tant and uncertain battleground.



T h e Stat e s o f N e w Yo r k

19

With some early help from the patrician John Jay, two of the convention’s most active participants—­thirty-­one-­year-­old Alexander Hamilton of New York and thirty-­seven-­year-­old James Madison of ­Virginia—­entered the fray with a series of eighty-­five articles u ­ nder the pen name Publius. The Federalist Papers ­were designed to persuade readers of the benefits of adopting and ratifying the constitution. “It is doubtful w ­ hether it had much influence in determining the issue of ratification of the Constitution”; however it was,” as Edward Mead Earle wrote in his introduction to the Modern Library edition, “and continues to be the most impor­tant discussion of federal government, for which the Constitution of the United States set a significant pre­ce­dent. . . . ​It is also a work of first-­rank importance in the history of po­liti­cal philosophy and, in par­tic­u­lar, in the theory of representative government.”35 In a pluralistic society with numerous differing interests, Madison argued, “it is less probable that a majority of the ­whole ­will have a common motive to invade the rights of other citizens; or . . . ​to act in unison with each other.”36 Demographically, New York is splintered along pluralistic lines similar to ­those described by Madison and underscored, in New York’s case, by an abiding, mutual mistrust between the residents of its largest city and ­those of the rest of the state. Two economic systems, two cultures—as dif­fer­ent, in some ways, as the South and North in eighteenth-­century Amer­i­ca—­put together a government that was ­every bit as fragmented as that of the new nation of which it was a part. In parallel with the new national government of the United States, local and minority interests w ­ ere protected from mass movements by a complicated set of institutional devices that Madison said would serve as “auxiliary precautions” against unchecked majority rule or the “mischief of factions.” Just as Madison feared that a puff of popu­lar passion might bring to power a regime that would use its temporary popularity to establish a dictatorship, so have many New Yorkers feared that the city would impose its priorities on the rest of the state (or vice versa). Checks and balances remain at the core of both state and nation in the form of four interrelated princi­ples. ­These are ­limited government, repre­sen­ta­tion, checks and balances, and shared governance.

­Limited Government and Repre­sen­ta­tion Unlike the Constitution of the United States, which originally had no bill of rights, the New York Constitution is one of the most rights-­protective in the

20 C h a pt e r  1

country. New York was the first state in the nation constitutionally to ban racial discrimination and to guarantee l­abor’s right to or­ga­nize. The constitution also serves to protect individuals and minorities by limiting not just what the government can do but also how it can do t­ hose ­things. To borrow money, for example, the proposal must—­under normal circumstances—be approved by the legislature and then placed before the ­people in a public referendum. Many policies are embedded in the constitution, where they can be changed only by a cumbersome pro­cess of amendment. Even so seemingly trivial an issue as a land swap near Long Lake was presented to the state’s voters in 2018 ­because of a constitutional provision governing forest lands. Almost 40 ­percent of the provisions in New York’s long and detailed constitution comprise material that in most other states would have been found in ordinary laws.37 Although Madison was skeptical of the effectiveness of constitutions in serving as effective checks on po­liti­cal power—­referring to them as “mere parchment barriers”—he was both acutely and astutely aware of the importance of the pro­cess of decision making and of the ways in which the outcomes of po­liti­cal conflicts could be ­shaped by the rules of the game. Among the most impor­tant checks on demo­cratic excess was what he called the republican princi­ple of representative as opposed to direct democracy. Public participation in government, Madison argued, was best filtered through elected representatives, whose “wisdom . . . ​patriotism and love of justice” would “be more consonant to the public good than if pronounced by the ­people themselves.”38 As New York’s agrarian aristocracy gradually yielded to new captains of industry and ­those with ­legal training, the socioeconomic evolution of the governorship paralleled that described by Robert Dahl in New Haven, from the early period when “public office was almost the exclusive prerogative of the patrician families,” through a nineteenth-­century ascension of “the new self-­made men of business, the entrepreneurs,” to the twentieth-­century sons of “working class or lower ­middle class families of immigrant origins.”39 Not ­until 1919, with the election of Al Smith, did the first urban, working-­ class, non-­Protestant reach the state’s highest office. Aside from Carl McCall—­a person of color—­who ran unsuccessfully in 2002, no ­woman, Black, or Latino has won the nomination of a major party for governor. David Paterson became the first Black governor a­ fter Spitzer’s resignation in 2008 but lasted only two years. The legislature has gone through similar phases. While it is reasonably representative of the state’s ethnic minorities, and ­women have increased their presence in the legislature to nearly one-­third of the overall membership (slightly above the national average of 25 ­percent), what is perhaps most striking is the professionalization of politics in the state. Benjamin and Nakamura, investigate legislator’s self-­descriptions and find that “more than two-­thirds of Assembly



T h e Stat e s o f N e w Yo r k

21

members and more than half of senators describe themselves not as ­lawyers, businessmen, or con­sul­tants but as legislators.”40 ­Today, virtually e­ very member of the legislature is a full-­time politician. W ­ hether Madison would have favored the development of a po­liti­cal “class” is debatable, but he almost certainly would have applauded the tendency increasingly to entrust the making of public policy to ­those who know how laws are made. New York also was slow to expand and sustain popu­lar participation in elections. As we have noted, the state was very late in offering the right to vote to former slaves. And despite the fact that the w ­ omen’s suffrage movement was essentially born in Seneca Falls in 1848, it was not ­until 1917 that New York allowed ­women to vote. Even in the twenty-­first ­century—as we ­shall see in chapter 3—­New York has comparatively low rates of voter participation. In 2018, only five states had lower voter turnout rates. Democracy in New York is filtered through professional politicians who represent the relatively narrow strata of more affluent, better-­educated citizens. W ­ hether this has produced “representatives whose enlightened views and virtuous sentiments render them superior” is not clear.41

Checks and Balances The third layer of Madison’s checks on the mischief of faction involved the creation of a complex structure of government in which it would be difficult to get anything done in the absence of very strong consensus. The separation of powers among the legislative, executive, and judicial branches is designed to ensure “that each department should have a w ­ ill of its own; and consequently be so structured that the members of each should have as ­little agency as pos­si­ble in the appointment of the ­others.”42 New York’s constitution—­like the Constitution of the United States—­incorporates a separation and blending of the respective powers of the governor, the legislature, and the judiciary. Unlike most of the other former colonies, New York’s first constitution created a strong office of governor. Both subsequent constitutions and po­liti­cal traditions have made the office even more power­ful, particularly in its ability to check and balance the powers of the legislature. But the powers of the legislature cannot be ignored, if only in its ability to shape the contours of public debate. The state’s highest court has not hesitated to step in to resolve major conflicts over public policy. The po­liti­cal pro­cess has been rendered still more complex by an elaborate structure of public corporations and authorities that often operate quite in­de­pen­dently of both the legislature and the governor. The Metropolitan Transit Authority, for example, has its own in­de­pen­dent bud­get of

22 C h a pt e r  1

more than $9 billion (larger than that of the total bud­gets of seventeen states). The state constitution’s restrictions on borrowing and many rules regarding hiring practices and contracting are not applicable to many of ­these semi-­ independent agencies, which essentially govern themselves.

Shared Governance Fi­nally, New York has one of the most complex networks of local governments of any state. In addition to some 1,600 counties, cities, towns, and villages, ­there are 697 school districts with in­de­pen­dent taxing power; 6,500 special-­ purpose units of local government, such as fire districts and w ­ ater authorities; and another 810 special-­purpose units such as libraries and parking authorities.43 The prob­lem of coordinating the acts of t­ hese numerous governments is formidable. Legally, local governments are creatures of the state. Unlike the fifty states in the federal system, local governments have no formal powers of their own; but ­because of New York’s state constitution and numerous “home rule” statutes, “it is hard to imagine a scenario for a statist centralizing of the power to control change in local institutions that citizens would support.”44 Mayors of New York City are the chief executives of what would be the nation’s thirteenth-­largest state, a position that almost automatically makes the city’s mayors major media players in rivalry with the governor. In the end, “the state remains preeminent over most city affairs, a power the governor has never shied from using: It is if the mayor can only bring a knife and the governor avails himself of military artillery.”45 It would be a foolish governor, however, who took that statement too literally. In contrast with Madison and his fear of intolerant majorities, what trou­bles many modern observers of New York politics is its fragmentation, the difficulty its diverse population has in agreeing on anything. Calling it “the graveyard of good intentions,” one author writes that “New York’s im­mense size, its multitude of racial and ethnic rivalries, its complex po­liti­cal structure, and its many layered bureaucracies put it in a class by itself as a hard place to get anything done.”46 Many ­others have called the state “ungovernable.” Despite its fragmentation, New York historically has been a “liberal” state, with surveys showing its citizens among the most liberal in the nation.47 As the country moved to the right in the 1980s and 1990s, New York was slower to embrace the right and less decisive than in most other states. In 2016, only five states cast larger percentages of their popu­lar votes against Trump. If New York’s liberal inclinations help explain its rec­ord of liberal legislation, it does not tell us how generations of politicians have managed to overcome the impediments to action that seem to be



T h e Stat e s o f N e w Yo r k

23

woven into the fabric of the state’s demography and politics. The answers are both institutional and po­liti­cal.

Strong Governors, Strong Parties Wary from experiences with colonial rule, most US states gave their governors ­limited powers and short terms in office. New York was the exception. The constitutional scope of the office historically has tended to attract strong leaders who have not hesitated to lead. A defining figure in this pro­cess was Al Smith, who served from 1919 to 1920 and from 1923 to 1928. Riding a rising tide of reform, Governor Smith was able both to enact a substantial program of social and economic policies and dramatically strengthen the formal powers of his office. For the first time, preparing the bud­get became the governor’s responsibility. By combining his control over funding with reforms in the bureaucracy, Smith and his successors ­were able to set the policy agenda. Gradually, the legislature began to reassert itself. Increasingly professionalized and no longer dependent on the declining party machines, the legislature in the 1960s developed the staff and resources to reassert itself. For more than forty years—­until the elections of 2018—­the policy pro­cess in Albany settled into a relatively stable three-­ way pro­cess of bargaining among the governor, the Republican-­controlled State Senate, and the Demo­cratic State Assembly—or “three men in a room,” the governor and the leaders of the majority party in each chamber. Still, the governor’s nearly absolute ability to control the bureaucracy and the bud­getary pro­ cess made him the owner of the room. The legislature’s public prestige is low, and the fact that legislative power was for so long divided between a Republican Senate and a Demo­cratic Assembly gave the governor a margin of extra leverage. Few demo­cratic legislatures are efficient, and New York’s is not. What the New York legislature does do—­and quite effectively, in Madisonian terms—is to broker the conflicting interests of highly diverse constituencies and bring them to a central location (Albany) for resolution. The legislature retains some effectiveness largely through the mechanism of party government. As a practical politician, Madison did not allow his fear of factions and mistrust of po­liti­cal parties to stop him from working with fellow Virginian Thomas Jefferson to form what is now the Demo­cratic Party as a ­counter to the economic policies of Secretary of the Trea­sury Alexander Hamilton: “Neither Madison nor Jefferson abandoned their philosophical views that parties are divisive and dangerous. But, like anyone who acts as well as writes about politics, they ­were faced with a fact, not a theory. The fact was that Hamilton’s designs could be defeated only by unifying the anti-­Hamiltonians in Congress and

24 C h a pt e r  1

by increasing their number in the elections of 1792 and a­ fter. . . . ​And so it was that James Madison, the distinguished antiparty theorist, became the cofounder of the world’s first modern po­liti­cal party.”48 The Jeffersonian Republicans—­ancestors of the modern Demo­cratic Party—­ quickly became the dominant force in New York State. By striking an alliance with the city’s Tammany Hall, Hudson Valley’s Martin Van Buren consolidated what was arguably the first statewide po­liti­cal party organ­ization. In the city, Mayor Fernando Wood took over Tammany, making the party an effective vehicle for overcoming the prob­lems of deadlock inherent in the Madisonian system. Discipline, not democracy, marked the internal politics of the machine, and in this sense the rise of Tammany and its counter­parts was a continuation of oligarchic po­liti­cal relationships that had dominated prerevolutionary New York. “While the revolution ushered in a new era of liberal democracy, it si­mul­ ta­neously welcomed the intermingling of new and old elites and their fusion into local, regional, and national establishments. And high on the agendas of many of t­ hese groups was the modulation of demo­cratic demands and the exercise of control over the vari­ous pro­cesses of partisan politics, much in the way the old oligarchies had done.”49 By the end of the nineteenth ­century, the state was divided into a crazy quilt of well-­organized, one-­party-­dominant enclaves of machine fiefdoms. Or­ga­ nized around questions of patronage and payoffs rather than ideology, the machines in effect took New York politics out of the electoral arena and into the proverbial “smoke-­filled rooms” where the deals ­were cut. Although the state was no longer run by the patricians of the city and the Hudson Valley, New York continued to contain the pro­cess of po­liti­cal bargaining in a relatively small circle of professional politicians. Governors had to negotiate their programs with the machines’ representatives in the legislature, who w ­ ere largely far more focused on local politics and patronage than state issues. As the machines declined, their ability to c­ ounter the governor all but dis­appeared. Governor Rocke­fel­ler, it was sometimes said, owned one h ­ ouse of the legislature and had a long-­term lease on the other. As both parties worked to secure their in­de­pen­dence, displacing the nominating and campaign finance roles of the county leaders with more centralized systems, the modern system emerged. Local machines—­the Republicans in Nassau and Suffolk Counties; the Demo­ crats in Brooklyn, Queens, Albany, and Buffalo—­were gradually marginalized in ­favor of six professional statewide parties, one for each party in each ­house of the legislature, plus the statewide organ­izations of the governor and his allies. This was the po­liti­cal landscape that dominated the state u ­ ntil 2018.



T h e Stat e s o f N e w Yo r k

25

Strong party states like New York are not without fractious divisions between interests. What they do succeed in ­doing is to channel the clashes of ­these “factions” through the filters of a central party apparatus. The bargaining pro­cess takes place in the party caucuses and when the majority-­party leaders meet with the governor. ­These “three men in a room”—­never occupied by a w ­ oman ­until 2019—­were never as autonomous or omniscient as in the popu­lar myth. As we ­shall see in chapter 5, the legislative leaders ­were unable to act without support from their party colleagues. Moreover, despite the central roles of the Speaker and Majority Leader, they did not come into the room with the same resources as the governor. As long as the party conferences of the Speaker and the Majority Leader w ­ ere unified, their power resided in their ability to appeal to public opinion, to rally outside support, and ultimately to say no. Although this system seems to allow the governor—­with the help of the legislature—­effectively to control Madison’s mischief of faction, the “three men in a room” operated in a po­liti­cal and economic environment that they could never fully control. In their fund­rais­ing, campaigns, and negotiations, the party leaders operate in a complex web of socioeconomic and po­liti­cal relations that demarcate the bound­aries of their discretion.

Patronage, Corruption, and Stealth As the interlocking systems of growing gubernatorial power and party discipline have interacted to make New York governable, a system of patronage politics also increasingly serves to keep a wide diversity of interests from ­either tearing the system apart or plunging it into hopeless deadlock. One time-­ honored (though generally deplored) method of pacifying disruptive factions is simply to buy them off. The old po­liti­cal machines did so largely through classic forms of patronage (the party that won an election rewarded its supporters with government jobs and contracts). Modern party organ­izations distribute policies and government resources much as the old machines did, through what Lowi called “patronage policy” or “distributive” politics. Lowi’s categories distinguish between policies that use the powers of government through regulation, distribu­ tion, and re­distribution.50 All government programs are essentially redistributive in the sense that they ­either take someone’s tax money to give benefits to someone e­ lse or use government power more closely to regulate the be­hav­ior of citizens. Lowi suggests that ­these policy arenas are distinctive not in their economic effects but in their pro­cesses and power structures. Distributive politics, he argues, are characterized by the del­e­ga­tion of state power to the most effectively or­ga­nized interests

26 C h a pt e r  1

in society. The role of government is to ratify and fund agreements worked out among private groups. Instead of making laws governments delegate power, “patronage policy is a way to displace conflict not confront it.”51 More than one-­eighth of the state’s annual spending, for example, provides aid to local schools. The formula for allocating t­ hese funds was once redistributive and relatively s­ imple. As enacted in the 1970s, it had three basic categories designed to use state funds to supplement the local taxes of poor districts and bring them closer to ­those of the more affluent. Forty years ­later, ­there ­were “nearly 50 separate formulas and program grants” that increasingly tended to protect rather than correct inequities in funding.52 A series of court cases launched by the Campaign for Fiscal Equity fi­nally resulted in a 2006 decision from the state’s highest court holding that ­these inequities ­violated the state constitution. The legislature passed a new funding formula in 2007, but its numbers have never been included in the bud­get. What happens instead is that the governor’s annual bud­get includes technical language describing the funding formula. Nobody reads or understands it. What they do study and understand are the Education Department’s estimates of the formula’s impact on each school district. Legislators who see funds for their schools being cut—­ particularly ­those in more affluent suburban districts with well-­organized, power­f ul parent-­teacher associations—­work to “rebalance” the formula, with the result that l­ittle changes. To compound the prob­lems of the poorer districts, district supervisors, when they get their allocations from the state, further ­favor the more affluent schools within their districts. This is a classic case of distributive politics. A s­ imple law redistributing state funds to provide more equal educational opportunities is replaced with series of deals preserving the privileges of the better or­ga­nized. As we ­shall see in chapters 7 and 8, this process—­“interest group liberalism,” as Lowi called it—is characteristic of the pro­cess in New York. More direct forms of patronage politics are evident, particularly in the area of economic development. State agencies such as the Empire State Development Corporation, the Dormitory Authority of the State of New York, and the SUNY Research Foundation—­ along with ten regional development agencies—­allocate billions of dollars in subsidies and tax breaks for job-­creating proj­ects. The laws establishing the criteria for determining how ­these funds are distributed are vague, delegating specific allocations to the administrators. In one of the largest deals of this kind, the state gave Advanced Micro Devices more than $700 million in tax breaks, $200 million in direct grants, and just over $1.4 billion to build Global Foundries, a microchip manufacturing fa­cil­i­ty in Malta, New York. The proj­ect not only created two thousand jobs and helped stabilize the nation’s supply of chips but also became the foundation of an expanding business.53 Still, it is unlikely



T h e Stat e s o f N e w Yo r k

27

that the million dollars per job that the state contributed w ­ ill ever be redeemed. Subsidies such as t­hese are increasingly common throughout the country, but New York has been uncommonly aggressive in ­these competitions.

Barriers to Effective Governing Distributive politics control the mischiefs of factions by co-­opting them, making government policy the sum of private deals. By satisfying the most power­ ful interests, distributive politics muzzle dissent and avoid deadlock. Strong governors are also better able to govern effectively than ­those who must share their power with legislators. And strong disciplined parties such as t­ hose found in New York make the legislative pro­cess more efficient. Governments that govern effectively, however, do not necessarily govern well. ­There are pathologies associated with distributive politics, strong governors, and disciplined parties. “The attempt to keep Albany r­ unning u ­ nder a form of demo­cratic centralism—­‘three men in a room’—­has served the parties, the interests of governors, and the interests of members of the legislature, but it has done so at the expense of effective, responsive, and open government.”54

Secrecy The forces that facilitate governance do so at the expense of transparency. Secrecy provides an efficient way of hiding corruption and incompetence and of denying outsiders access to the decision-­making pro­cess. Bureaucracies are generally more secretive than legislatures, and New York governors—­who have uncommonly unfettered control over the state bureaucracy—­have run remarkably tight ships. “In the United States,” as Daniel Patrick Moynihan once wrote, “secrecy is an institution of the administrative state that . . . ​is distinctive primarily in that it is all but unexamined.”55 Typically, New York’s legislature has been uninterested in oversight, showing instead a preference for holding its own deliberations ­behind closed doors. Strong party leaders working in t­ hese member-­only environments use the curtains of privacy to ensure the unified support of their parties, enabling them to better confront the governor and the leaders of the other ­house. The winners of the game in distributive politics also have an interest in keeping their deals private. Particularly in the area of economic development, where the l­egal instructions from Albany are vague, recipients and agencies negotiate the a­ ctual subsidies and tax breaks ­behind closed doors. More vis­i­ ble programs of assistance to specific groups—­vari­ous forms of assistance to

28 C h a pt e r  1

the poor especially—­are highly unpop­u­lar, but t­ hose “embedded in the tax code or channeled through private organ­izations,” particularly when they are largely “submerged,” carry ­little such onus.56

Oligarchy Secrecy serves the interests of insiders, especially t­ hose with access to governors, party leaders, and t­ hose who negotiate subsidies, spending formulas, and tax breaks. New York, as we have noted, is a liberal state with higher taxes and more generous welfare programs than most, but it also is remarkably conservative in the ways in which it distributes benefits. Absent a major electoral upheaval, major change is unlikely given the strength and resilience of both private groups and government institutions. It is a system that “institutionalizes privilege by shifting the authoritative allocation of values to bureaucratic arenas in which or­ga­nized interests possess access and legitimacy but the public typically is underrepresented.”57 A system of distributive politics markedly distorts priorities, inhibits planning, and is inherently “conservative” in the worst sense of that term. The gap between school funding laws that theoretically help less affluent communities and a po­liti­cal pro­cess that turns the formula on its head is illustrative of how distributive politics can be used by the privileged to distort policies in their ­favor. Similarly, the many agencies charged with subsidizing job development programs almost by definition deal exclusively with larger, well-­established corporations. The small business that might seek such a grant has neither the connections nor the grant-­seeking skills of Amazon, lacks previous experience with the granting agency, and can promise only relatively trivial returns (thirty jobs as opposed to thirty thousand), though Amazon’s failure to build a subsidized ware­house in Queens shows that even the mighty sometimes stumble. Just as money does not always win elections, neither does it always overwhelm a determined opposition movement. The universe of or­ga­nized groups in New York is stable. In countless ways, their influence is magnified by the long-­standing relations they have developed with public officials and by a system of campaign finance that is remarkably opaque and freewheeling. In one comprehensive study listing the fifty states in order of participation by small donors in campaign finance, New York was fourth from the bottom, with only 4 ­percent of its campaign donors giving $250 or less.58 At the top of the scale—by creating special ­limited liability corporations—­major donors can make virtually unlimited, largely hidden donations to individual campaigns and party committees. Money, as we s­hall see in chapter 3, does not always win elections, but it certainly helps.



T h e Stat e s o f N e w Yo r k

29

Corruption In his study of the investigation of the New York City police department in the 1970s, Michael Armstrong argued that “corrupt cops w ­ ere of two kinds: ‘meat eaters,’ the incorrigible few, who devoted virtually full time to collecting payoffs . . . ​and ‘grass eaters,’ the vast majority who participated in the common, everyday graft indulged in by just about every­one.”59 The vast majority of ­those convicted of corruption in New York are, at worst, “grass eaters.” They are guilty of rather petty infractions, such as that of a former assemblyman who claimed travel for reimbursements from trips he had gotten for f­ree. In its overall economic impact on the state, corruption is trivial. In the first two editions of this book, indeed, we argued that the numerous devices employed by the state to control corruption are cumulatively far costlier to taxpayers than the corruption itself. But the patronage politics that are associated with “meat-­eating” corruption and other pathologies have serious impacts that cannot be dismissed. With two former party leaders (Assembly Speaker Sheldon Silver and Senate Majority Leader Dean Skelos) having served prison sentences for their offenses, it is difficult to argue that public trust in the integrity of the government is not a serious issue. Competing with other states for economic development opportunities makes it increasingly difficult to construct an overall policy that allocates job development funds equitably. It is in this area in par­tic­u­lar, however, that patronage politics begins to veer into corruption. The 2018 convictions of Alain Kaloyeros, head of the SUNY Polytechnic Institute, and Joe Percoco, a former aide to Governor Andrew Cuomo, stemmed from patterns of favoritism in awarding government proj­ects.60 ­There is l­ittle doubt that the bidding system in ­these cases was rigged in ways that favored par­tic­u­lar contractors who repaid their patrons. The point too often ignored, however, is that a system that gives bureaucrats broad discretionary powers to allocate funds for proj­ects of this scope is ripe for abuse. With literally dozens of smaller, less vis­i­ble economic development funds scattered throughout the state, the SUNY Polytechnic abuses are not likely to be the last. Unfortunately, the state’s primary defense against corruption—­the Joint Committee on Public Ethics ( JCOPE)—­ quite simply has not been up to the task.

Where Do We Go from ­Here? Due to its demographic and po­liti­cal diversity, New York ­faces unique prob­ lems of balancing efficiency in government with accountability. For almost fifty

30 C h a pt e r  1

years, a tenuous but relatively stable equilibrium was maintained between strong governors, the disciplined parties of a Republican Senate and a Demo­ cratic Assembly, and the ability of ­these actors to govern a fragmented state. The 2018 elections changed ­these dynamics. The Demo­crats not only won eight state senate seats previously held by Republicans but also defeated the dissident Demo­crats who previously had helped the Republicans maintain control. One of the first acts of the newly Demo­cratic government was a voting rights law that could significantly expand the electorate to the probable advantage of the party. By expanding their control in 2020, the Demo­crats ­were able to end the partisan gerrymandering of the Senate that had extended and sustained Republican control. Early in the 2019 session of the legislature, it became clear that the dynamics of governance had changed. Rather than waiting for the specific language embedded in the governor’s bud­get, the Senate and Assembly quickly passed (in addition to the election reform law) bills on gun control and reproductive rights that had long been blocked in the Senate. The bud­getary pro­cess, made more difficult at the outset when it became apparent that t­here would be a shortfall in tax revenues of more than $2 billion, showed fewer changes in priorities than might have been expected given the changes in the partisan and demographic bases of the Senate. For de­cades, Senate Republicans and Assembly Demo­crats (two-­thirds of whom typically come from city districts) engaged in logrolling, in which the more rural Senate would support funding for the City University of New York (CUNY) system in exchange for Assembly support of the State University of New York, the Senate would support mass transit in exchange for Assembly support for highways, and so on. With two of the three men joined by a w ­ oman, and with all three of them Demo­ crats, the 2018 elections changed the constellations of interests coming to the ­table. The governor was no longer able to triangulate between Senate Republicans and Assembly Demo­crats. The pathways of the old system are well worn even with one party in control over both the executive and legislative branches; the realities of upstate-­ downstate, economic, and demographic cleavages must still be resolved. Strong governors, strong parties, and patterns of patronage ­will be more responsive to urban and liberal po­liti­cal forces, but the overall pro­cess remains the same. In accordance with the old adage that the more ­things change the more they remain the same, New York’s politics ­will continue to be ­shaped by the dynamics of divisions between upstate and downstate, rich and poor.

C h a p te r   2

New York in the Federal System

The demographics, dichotomies, and differences described in chapter 1 continue to play key roles in New York politics, but only explain a part of the context within which the state government acts. Although New York is larger in area, population, and gross domestic product than most countries, it is not a fully sovereign state. By design, the found­ers established a federal system dividing power between the national government and states. The US Constitution grants certain powers to the states, limits and proscribes ­others, and is ­silent on most. For example, New York has significant latitude in crafting education policy, shares power with Washington in administering Medicare, and has almost no say about foreign affairs. Subsumed ­under the states is local government—­a complicated mélange of cities, towns, villages, counties, and special districts—­which acts as a third layer of government. Legally, local governments do not have the same in­de­ pen­dence vis-­à-­vis the state as states have in the federal system. Localities are creatures of the state. With their powers derived from state charters, the governor and state legislature could abolish Syracuse, give Staten Island its in­de­ pen­dence, or break New York City into separate towns. Without the state’s consent, the federal government cannot take such actions. The real­ity of intergovernmental relations in the United States bears only a passing resemblance to this ­legal ordering. Professor Morton Grodzins’s famous marble cake analogy aptly describes the federal system in practice: “The 31

32 C h a pt e r  2

federal system is not accurately symbolized by a neat layer cake of three distinct and separate planes. A far more realistic symbol is that of the marble cake. Wherever you slice through it you reveal an inseparable mixture of differently colored ingredients.”1 This analogy suggests a dynamic quality in which the relationships between federal, state, and local authorities are in constant flux. While the federal government may be stronger at times and the state governments stronger at other times, “the p­ eople, by throwing themselves into ­either scale, ­will infallibly make it preponderate. If their rights are invaded by ­either, they can make use of the other as the instrument of redress.”2 If only ­because it controls the money supply, the federal government’s role in shaping public priorities ­will always cast more than a passing shadow across the country. States, however, “as the ever-­so-­important intermediaries between national society and local communities . . . ​are the linchpins of the federal system.”3 As relations between the three levels of government shift between modes of conflict and cooperation, the role of the states has varied over time, as has our understanding of the constitutional doctrines within which t­ hese relations have evolved.

The Constitution and the Changing Face of American Federalism At the heart of the US Constitution’s definition of federalism are four key articles. The Tenth Amendment guarantees that “powers not delegated” to the federal government, nor “prohibited . . . ​to the States, are reserved to the States.” Since the Constitution enumerates relatively few federal powers, and prohibits the exercise of few state powers, advocates of states’ rights historically have argued that most government powers are and should be “reserved to the states.”4 Although this position still finds an occasional adherent and produces some power­ful po­liti­cal rhe­toric, it has ­little standing in the face of three more forceful constitutional provisions. The first of t­ hese—­article I, section 8—is the so-­called elastic clause. By giving the federal government the power to “make all laws which ­shall be necessary and proper to carry into execution” its enumerated powers, the Constitution created a large loophole made even larger by the Supreme Court’s willingness to interpret the federal government’s powers broadly. Chief Justice Marshall set the tone for subsequent decisions in the landmark case of McCulloch v. Mary­land (1819), writing, “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which

N e w Yo r k i n t h e F e d e r a l Sys t e m

33

are not prohibited, but consist[ent] with the letter and spirit of the Constitution, are constitutional.”5 The second source of federal power is the “commerce clause” also found in article I, section 8. The commerce clause gives Congress the power “to regulate Commerce . . . ​among the several States.” Justice Marshall’s insistence that the definition of interstate commerce should be “comprehensive,” extending to “­every species of commercial intercourse,”6 has been carried to the fullest pos­si­ble degree by subsequent courts, particularly since the 1930s Supreme Court ruling upholding major New Deal programs u ­ nder President Franklin D. Roo­se­velt. Fi­nally, the ­Fourteenth Amendment—­ratified ­after the Civil War—­guarantees all citizens, regardless of where they reside, “equal protection of the laws.” Seeking to avoid Southern retribution against freed slaves following the Civil War, this clause suggests that the national government would protect all citizens of the United States against state actions in violation of the federal Constitution. For example, the First Amendment, which says that “Congress ­shall make no law respecting an establishment of religion,” also might be invoked to prohibit a state act that similarly favored one religion over another. Although this interpretation of the F ­ ourteenth Amendment was not immediately accepted and remains controversial, the courts have tended to expand the kinds of state actions subject to federal review. Hence state laws mandating school prayer or abridging other First Amendment rights, such as freedom of speech, criminal procedures not permitted u ­ nder the US Constitution, and protections against invasions of privacy, have come u ­ nder the umbrella of citizen rights protected from state law through the ­Fourteenth Amendment. More conservative courts in the twenty-­ first ­century have given states more latitude, but despite continuing controversies regarding the scope of protected rights, the amendment’s essential limitation on state power remain in force. What­ever the intent of the framers, the economic and social realities of the early twenty-­first c­ entury make many state powers obsolete. A mobile population expects rights to accompany them knowing that a religious practice tolerated in New York is not forbidden in Texas. A changing economy has made most commerce “interstate” in nature, regardless of what the courts might say. Yet globalization has automatically enhanced the powers of the national government. By granting or withholding funds the federal government can force the states to act in ways that no constitutional doctrine supports. For example, in the 1980s, Congress managed to raise the ­legal drinking age in states to twenty-­one by threatening to deny federal highway funds to any state that refused to raise its drinking age. Within a year, ­every state had complied.

34 C h a pt e r  2

This is by no means settled law. More recently, many states have declined to cooperate with the deportation of undocumented immigrants, claiming the Tenth Amendment allows states and localities to refuse assistance to the federal government. Albany, Franklin County, Ithaca, Nassau County, New York City, Onondaga County, St. Lawrence County, and Wayne County designated themselves as sanctuary cities in which local officials do not voluntarily share information with federal Immigration and Customs Enforcement officials; only some do if the request for assistance is accompanied by an arrest warrant.7 President Donald Trump’s attempt to withhold federal funds to sanctuary cities in New York and other states was ruled illegal by federal appeals courts in San Francisco and Philadelphia, but the Second Cir­cuit Court of Appeals, in a New York case, affirmed that the administration could in fact withhold law enforcement grants to states.8 Similarly, when New York State passed the Green Light Act (2019) giving undocumented immigrants driving privileges, Trump’s Department of Homeland Security (DHS) suspended applications for the Trusted Traveler programs (e.g., the Transportation Security Administration’s TSA PreCheck program and the US Customs and Border Protection’s Global Entry program in New York) for New York State residents. The state law prevented the DHS from reviewing New York State Department of Motor Vehicle rec­ords, thereby limiting the department’s ability to track warrants and criminal rec­ords. Before the courts could decide the case, the state negotiated a deal allowing ­limited access and the case became moot, but the under­lying ­legal issue remains.9 Although federal power has been leveraged in t­ hese cases in ways that it had almost never had been previously, it is by no means certain that ­these actions can legally be sustained. As a general rule, however, the courts have been unusually likely to support national powers over state and local. Indeed, “despite numerous l­egal challenges, the Supreme Court ruled in ­favor of the national government on ­every federalism case between 1937 and 1995”10 and has continued to do so in most subsequent cases.

Fiscal Federalism An old po­liti­cal adage suggests that to understand power you should “follow the money.” One way of tracing the locus of power between dif­fer­ent levels of government is to follow the funding trail and ask who spends how much for what? U ­ ntil the ­later years of Franklin Roo­se­velt’s New Deal, the bulk of the money spent on domestic government programs was spent by the states, and within the states by local governments; meanwhile, spending at all levels

N e w Yo r k i n t h e F e d e r a l Sys t e m

35

of government was relatively modest. Congress was reluctant to involve the federal government in major programs even in the face of a major crisis such as the G ­ reat Depression. All this changed, however, with the New Deal ­under President Roo­se­velt. Some of its programs, such as Social Security, ­were administered almost entirely by the federal government, while many o ­ thers used federal resources to subsidize state and local proj­ects. State activities also expanded in the 1930s, as the states likewise sought to combat the Depression. In cumulative terms, total spending by all levels of government r­ ose from less than 10 ­percent of the gross domestic product (GDP) in 1929 to roughly one-­third in modern times. More than half of this spending occurs among states and localities, but much of this is money that came to the states from the federal government. If we eliminate t­ hese duplications, the overall numbers have been remarkably stable for a number of years. Between 1965 and 2005, the total tax burden on the American p­ eople has consistently hovered around 2  ­percent or 3  ­percent above or below 25 ­percent of the GDP. What this obscures is a rather dramatic shift in the ways in which government funds are mixed together, largely through what are known as grants-­in-­aid.

Grants-­in-­Aid Grants-­in-­aid are monetary allocations from the federal government to state and local governments. ­These grants are designed to give states and localities financial assistance in meeting certain nationally set goals. They come in two broad categories: block grants that allow considerable state and local discretion in how moneys w ­ ill be spent, and categorical grants that define quite precisely how and where moneys are allocated. An early example of a grant-­in-­aid was the Morrill Land Grant Act (1862), which gave each state thirty thousand acres of public land to establish agricultural and mechanical arts colleges. ­Under the Morrill Act, the states could obtain land only if they provided some of their own resources to meet federal standards.11 The land was offered as an inducement designed to incentivize states to do something the federal government thought they should do but was reluctant to do itself. Indeed, a national system of federally funded colleges would almost certainly have been ruled unconstitutional even if Congress had wanted to establish such a system. No such strictures applied to a transfer of land. The number and scope of grants-­in-­aid increased in the 1930s as the Roo­ se­velt administration pushed states to be more proactive in combating the Depression. During and a­ fter World War II, federal grants-­in-­aid accounted for roughly 10 ­percent of state and local expenditures. Unlike the Morrill grants,

36 C h a pt e r  2

most New Deal programs ­were designed to continue over a number of years, thus inculcating enduring relationships between national, state, and local governments. The number and spending levels of federal grant programs r­ ose slowly in the years following World War II, rising sharply in the 1960s. During Lyndon Johnson’s administration, more than two hundred new categorical grants ­were created. The three layers of government, which traditionally ­were relatively disconnected, increasingly came to resemble Professor Grod­ zins’s marble cake. Prior to 1964, the pattern of intergovernmental relations “was only moderately marbleized,” according to David Walker: “While more than 90 ­percent of federal aid distributed to states in 1960 ­were categorical grants, money was primarily given to four programs—­highways, aid to the aged, [welfare], and unemployment compensation.”12 President Richard M. Nixon’s administration sought to diminish the power of administrative subgovernments, or iron triangles (congressional subcommittees, interest groups, and bureaucracy), and slow the upward spiral of spending t­ hese helped to produce. The centerpiece of Nixon’s “new federalism” was revenue sharing, which allocated federal funds to states and localities according to their population and income, with “no strings attached.” Guidelines for revenue-­sharing funds ­were left vague to decentralize power. Some revenue-­ sharing funds went to the states, but the primary beneficiaries ­were municipalities, particularly the faster-­growing suburbs and small cities of the South, which ­were an impor­tant part of the Republican party’s developing po­liti­cal constituency.13 The losers ­were the states such as New York that already had existing programs and the administrative infrastructure to apply for and use more precisely targeted grants. One result of the Nixon reforms was to reverse the growth in the number of federal grant-­in-­aid programs, a trend that was to continue for almost twenty years. The number of specific programs—­which had grown by nearly 500 ­percent in the 1960s—­declined substantially in the 1970s, and by 1985 had virtually returned to 1965 numbers. At the same time, federal grant activity grew substantially in the 1970s, with more dollars of aid squeezed into a smaller number of programs. U ­ nder President Reagan in the 1980s, the decline in grant funds accelerated. The conventional view of marble cake federalism—­that the federal government could give the states both money and power at the same time—­still held, but with a kicker. Indeed, except ­under Trump, the early years of the twenty-­first ­century saw a revival of grant-­in-­aid activity without comparable increases in funding. George W. Bush’s administration increased the total number of grant-­in-­aid programs from 253 in 2000 to 814 in 2006, the largest addition of new grant-­in-­aid programs since the 1960s.14 Yet the percentage of the federal bud­get allocated to the states was virtually unchanged. In fact the

N e w Yo r k i n t h e F e d e r a l Sys t e m

37

rapid growth in the number of grant programs combined with l­ittle increase in nonhealthcare dollars meant that most grant programs ­were diminishing. For the states, this meant more programs to administer, more bureaucrats to administer them, and fewer net federal dollars with which to do so. Beginning with Nixon, the ongoing debate in US politics about who should govern shifted away from Washington to the states, in what has become known as the “devolution revolution.” Nixon’s new federalism demonstrated it was pos­si­ble to increase the federal government’s fiscal role in funding domestic programs while si­mul­ta­neously giving state and local governments greater autonomy to determine how the money should be spent.

Devolution and Diminution During the Car­ter and Reagan administrations, the debate shifted from being about who should run government programs to being about how much government t­ here should be. Between 1978 and 1990, federal grants-­in-­aid ­were essentially a story of stability and even decline, both in the number of programs funded and in total dollar amounts transferred to the states, with one exception—­health care. Medicaid, “the 400-­pound gorilla of federal aid to states and localities,” now accounts for almost half of all federal grants to the states.15 As costs for state governments continue to rise far faster than federal funds, the nonhealth federal percentage of state and local outlays—­more than 20 ­percent in the mid-1970s—­declined to less than 14 ­percent in 1993, the lowest level since 1961, and it stayed at that lower level for most of the next fifteen years. Grants-­in-­aid continued to grow, but not as rapidly as the state and local costs associated with sustaining the programs. With the advent of the G ­ reat Recession in 2008, mushrooming fiscal stress produced a national debt of $9.6 trillion, the highest since the 1940s, and dramatically impacted state and local bud­gets.16 The Obama administration responded with an economic recovery act that provided state and local governments with a combination of loans and expanded grant-­in-­aid programs, the first major expansion of aid in three de­cades. With passage of the Affordable Care Act (ACA) of 2010, states agreeing to participate received additional matching funds. As the recession receded, however, and Republican victories in the 2010 congressional elections increasingly polarized national politics, ­these increases dis­appeared. The Trump administration then cut a number of programs and abolished o ­ thers, so that the only major category of aid to show significant increases between 2010 and 2018 was health care. Interestingly, t­ hese cuts in funding w ­ ere accompanied by an a­ ctual increase of roughly 20 ­percent in the number of categorical grants available.17 Despite

38 C h a pt e r  2

Figure 2.1.  Federal grants to the states, 1960–2020

funding by the American Recovery and Reinvestment Act of 2009 and the Coronavirus Aid, Relief, and Economic Security (CARES) Act’s Coronavirus Relief Fund (CRF) of 2021, federalism has been marked by increasing po­liti­cal polarization and divided government. Federal mandates yielded a patchwork of policies in health and education, resulting in significant variation across states. As a result of gridlock in Congress, states used initiatives and referenda where ­there was no federal policy. States passed medical and recreational marijuana laws, applied for Medicaid waivers, and e­ ither restricted or expanded immigration laws. For example, New York ­adopted the Marriage Equality Act (2011) and the Compassion Care Act (2014), legalizing gay marriage and medical mari­ juana, respectively, demonstrating how states often undertake policy innovations at the state level. With the election of Donald Trump in 2016, partisan polarization continued while highlighting an increasingly contentious relationship between the

N e w Yo r k i n t h e F e d e r a l Sys t e m

39

federal and state governments. At the federal level, executive action has been met with re­sis­tance by states in the form of court cases and in some instances passing their own legislation. Regulatory rollbacks ­were characteristic of the Trump administration, which cut and overturned regulations, particularly ­those related to the environment. Challenging the Clean W ­ ater Rule’s suspension in 2018, New York, along with eleven other states, filed a suit against the Environmental Protection Agency arguing suspension of the Clean ­Water Rule ­violated the Administrative Procedures Act, further harming state’s w ­ aters by making the act more difficult to implement.18 Another characteristic of the increasingly contentious federal-­state relationship was a punitive approach taken by the federal government when states refused to comply with federal mandates or executive ­orders. During the COVID-19 pandemic, governors scrambled to secure ventilators absent federal assistance. At the epicenter of the pandemic in spring 2020, Governor Andrew Cuomo underlined how the Trump administration was unwilling to intercede and left states to deal with the fallout. Cuomo underscored the federal-­state relationship during the pandemic, lamenting that “it’s 50 states competing against the states and the federal government competing against the states.”19 Responding to polarization, executive o ­ rders, and punitive federalism (similar to coercive federalism), states have resisted federal directives and filed lawsuits with mixed success. The Trump administration’s ideological and partisan efforts to avoid working with the states increasingly forced them into new forms of both conflict and collaboration, in what might be called horizontal federalism. At one point during the pandemic, for example, some states, fearing the spread of COVID-19, issued bans on out-­of-­state residents; both New Hampshire and Rhode Island sent local police to knock on doors of residents with New York State license plates. Notwithstanding ­these initial skirmishes, regional alliances ­were formed among governors in the absence of federal action to mitigate the spread of COVID-19. In the Northeast, New York joined several other states, illustrating the strength of state alliances. The Trump administration’s failure to develop a plan to address the pandemic left the purchase of needed medical supplies and the provision of vaccines to the states, representing a very new perspective on intergovernmental relations. In the halcyon days of cooperative federalism, the general rationale for balancing the relations between levels of government was one of combining national needs with local implementation. Absent national action, t­here are prob­lems a federal system is unlikely to solve. When prob­lems cross state bound­aries, for example, states whose policies cause prob­lems for their neighbors have few incentives to bear the costs, and their victims have no ability to go to the source. “Why should w ­ ater quality regulators in Georgia care about

40 C h a pt e r  2

pollution in the Suwannee River if it is on the other side of the state line? Why should air quality regulators in New Jersey care about air pollution once it drifts into New York?”20 Since the New Deal, questions such as ­these have motivated federal officials in their approach to grants-­in-­aid. Slowly, a competing ideology that sees government as the prob­lem rather than the solution has been gaining ground to the point at which—in Trump’s four years—­the goal was more to defund rather than support all such interstate proj­ects, leaving the states to fight it out among themselves.

Federal Mandates: Funded, Unfunded, and Underfunded Although ­there is an extensive grants-­in-­aid system that allows the federal government to funnel funds to states and localities, on occasion the federal government requires state and local action but does not provide funding. In its baldest and most objectionable form, a mandate is an act of Congress detailing a new direction in public policy without assuming any of its costs. In effect, the federal government gives o ­ rders to the states “as if they w ­ ere administrative agents of the national government, while expecting state officials and electorates to bear what­ever costs ensue.”21 Federal activities that expose states and localities to additional costs include statutory direct ­orders, total and partial statutory preemptions, grants-­in-­aid with conditions and matching requirements, federal income tax provisions, federal court decisions, and administrative rules issued by federal agencies.22 Tension between the federal government and the states is arguably lowest when ­there are few mandates and lots of federal funding. In contrast, intergovernmental relations are most strained when the opposite is true. An in­de­pen­dent agency created by Congress—­the Advisory Commission on Intergovernmental Regulation (ACIR)—­monitored the relationship between the federal government and state and local governments to ensure greater communication and coordination between 1959 and 1996. The ACIR classified mandates along four types.23 The first type consists of direct ­orders—­legal decrees that are enforced with threat of civil or criminal sanctions. ­These are the most expensive from a state perspective and are found in the Ocean Dumping Act of 1972, which prohibit cities from dumping sewage into the ocean. Implementing this par­tic­u­lar prohibition has been very costly for New York City, ­because it has been forced to ship tons of waste as far away as Texas rather than simply towing it out to sea. A second type of mandate imposes penalties for failing to supply certain basic standards, such as making buildings, bathrooms, and public transit accessible to the disabled, or uses the threat of terminating funding to one kind of program if a state does not comply with the requirements of another. An

N e w Yo r k i n t h e F e d e r a l Sys t e m

41

example of such a “cross-­cutting” mandate is the law that makes eligibility for federal highway funds depend on w ­ hether states adopt mandated rules on drunk driving. A third type of mandate is a sanction whereby federal dollars in one area influence state and local policies in another area. An example of this type of mandate occurred when the government tried to punish sanctuary cities by reducing federal funds for crime and drug programs.24 A final form of mandate occurs ­under federal preemption of state and local law. Partial preemptions, for example, establish minimum national standards. The No Child Left B ­ ehind Act is illustrative of a partial preemption, b­ ecause the national government requires states to meet (and generally pay for) certain national benchmarks in the area of education. Unfunded mandates proved burdensome, and despite a divided government, the Unfunded Mandates Reform Act (UMRA) was a­ dopted in 1995. It was designed to restrict the ability of the federal government to impose uncompensated financial burdens on state and local governments, requiring the Congressional Bud­get Office (CBO) to provide an estimate of a mandate’s direct costs. Consisting of four titles, the UMRA addressed proposed and existing mandates imposed on state, local, and tribal governments, as well as the private sector. The goal of the UMRA was to strengthen the relationship between the federal government and state and local governments while considering the costs of implementing federal regulations. Although mandates ­were subject to cost thresholds, they never reduced the total number of unfunded mandates. As Paul Posner notes, “UMRA primarily covers only statutory direct o ­ rders, excluding most grant conditions and preemptions whose fiscal effects fall below the threshold. Statutory direct ­orders dealing with constitutional rights, prohibition of discrimination, national security, and Social Security are among ­those excluded from coverage.”25 Further underlining some of the UMRA’s limitations, “between 2007 and 2018, Congress passed 2,482 laws. Of t­ hose, 141 had unfunded mandates that exceeded the UMRA limit; a rate of 6 ­percent.”26 To remedy deficiencies in the UMRA, the Unfunded Mandates Information and Transparency Act of 2015 (UMITA) sought to broaden the UMRA’s coverage to broaden transparency and accountability, addressing both direct and indirect costs associated with proposed bills. The UMITA, too, has had l­ittle significant impact.

Fiscal Federalism in New York New York benefited as much as, if not more than, any other state from the early growth of grant-­in-­aid programs. With its progressive heritage, New York already had well-­established programs following the New Deal and ­Great

42 C h a pt e r  2

Society. With new federal dollars and their experience, New York bureaucrats proved remarkably ­adept at securing categorical grant funds. New York lost its edge, however, with the shift to block grants, and ­because many of the grant formulas w ­ ere directed ­toward less affluent, lower-­performing states, funds flowed elsewhere. Nonetheless, federal money continues to flow pretty much according to population, with California receiving the most federal aid revenues, followed by Texas, Florida, and then New York. Programs such as Medicaid that reward matching grants to states, such as New York, that both have large numbers of needy citizens and are generous in supporting them have led many non–­New Yorkers to conclude that the state’s high-­spending policies ­were costing the nation’s taxpayers more than their fair share. During the 2017 fiscal year, 36 ­percent of New York’s state revenue came from federal aid, compared with an average of 23 ­percent for the other forty-­nine states.27 This percentage has fluctuated only slightly since the peak grant-­in-­aid years of the 1970s. What has changed is the growing percentage of the total comprised by Medicaid, a health program for the poor that is eight times the size of second largest federally supported program in New York. In most other re­spects, however, New York does rather poorly in its fiscal relationships with the federal government. New York’s high poverty rate qualifies it for large grants in areas such as Medicaid, but paradoxically its high levels of affluence make it a highly taxed state as well. T ­ here also may be a po­liti­cal dimension to the distribution of federal funds. Since New York is a “blue state” in national politics (maps of recent elections show Demo­cratic states in blue and Republican states in red), it tends to suffer when Republicans control both Congress and the presidency, as they did from 2001 to 2006. Homeland Security funds, for example, originally targeted ­toward the 9/11 attacks w ­ ere gradually dispersed due to po­liti­cal pressures to give states such as Montana amounts of per capita aid comparable to that given to New York. The formulas used to calculate how grant-­in-­aid funds should be allocated are arcane, not widely understood, controversial, perverse, and extraordinarily impor­tant. For example, it prob­ably makes sense for Washington to give more money per mile for interstate highways in a mountainous state such as West ­Virginia than in a flat state such as Kansas. It also makes sense for the federal government to provide a higher match for Medicare funds for low-­income states. But how should this differential be calculated? “In ordinary years, the federal share can be as high as 83 ­percent for a very low-­income state and as low as 50 ­percent for a high-­income state. This effectively changes the “price” a state pays to provide health care for its poor and medically needy: a state with an 80 ­percent match rate pays only twenty cents to purchase a dollar of care while a state with a 50 ­percent rate match rate pays fifty cents to purchase

N e w Yo r k i n t h e F e d e r a l Sys t e m

43

a dollar of care, or two and one-­half times as much as the low-­income state.”28 While this formula can be considered “fair” b­ ecause it accounts for a state’s ability to pay for health ser­vices, it does not account for need, which in the New York case is also high. What­ever the right answer to the question of what constitutes a “fair” formula, the issue is increasingly less abstract.29 What­ever the distribution formulas for New York and the other forty-­nine states, the overall total of non-­Medicaid federal funding has declined. Not only are grants-­ in-­aid decreasing, but the negative impacts of federal fiscal policies through changes in tax policies, unfunded mandates, and shifts in health coverage from Medicare to Medicaid have been increasing for most of the past twenty years.30 Just as the federal government has often passed the bill for basic ser­vices to the states, so has the state of New York transferred a growing fiscal burden to its cities and towns. In 1948, journalist Warren Moscow wrote that “the state is not just a money-­grubbing miser. It returns to the cities, the towns, and the villages a major portion of its revenues.”31 Joseph Zimmerman wrote in 1981 that “New York devotes approximately 61 ­percent of its bud­get to aid local governments, the highest level of support among the fifty states.”32 That was then. ­Today New York requires its counties, cities, towns, and villages to shoulder more of the state’s fiscal burden than does almost any other state. Depending on who does the accounting, the state could indeed be seen as Moscow’s “money-­g rubbing miser.” Looking at taxes rather than expenditures, one recent study of data from 2017 ranked New York forty-­seventh among the fifty states in terms of the state percentage of total state and local tax revenue. Nationally, state taxes accounted for 56 ­percent of all state and local tax revenue in 2017. In New York, the state government’s share (45 ­percent) is even lower than in Texas (46 ­percent), and ­there is a comparable gap in spending.33 The general pattern is abundantly clear: New York increasingly, and more than almost any other state, relies on local taxes to finance the everyday operations of the government. It ranks forty-­eight among the fifty states in the proportion of state versus local funds expended on highways, and fiftieth on corrections. Moreover, New York uses the “pass-­through” device requiring local governments to administer and provide the matching funds for a variety of federal grant programs. It is the only state to require a significant local share for Medicaid. Local government officials in New York frequently fault what they regard as excessive efforts by the state to tell them what to do and how. Just as state and local officials complained about Washington’s reliance on “unfunded mandates,” New York’s county and municipal officials have leveled the same charge at Albany. Elected officials in New York City have been particularly critical of what they often describe as the state’s tendency to “micromanage” the smallest details of city government.

44 C h a pt e r  2

In ­legal terms, New York has a “unitary” rather than a “federated” form of government. State and federal courts have historically denied local governments any “rights” to perform functions not specifically granted to them by the state. They consistently adhered to “Dillon’s Rule” based on 1868 court case in Iowa by a Judge Dillon which argued that a municipal corporation possesses and can exercise the following powers, and no ­others: first, ­those granted in express words; second, ­those necessarily or fairly implied in or incident to the powers expressly granted; third, ­those essential to the objects and purposes of the corporation—­not simply con­ve­nient, but indispensable.34 While New York and the other states have granted varying levels of autonomy and “home rule” to local governments and agencies, localities following Dillon’s Rule are “involuntary subdivisions of the state, constituted for the purpose of the more con­ve­nient exercise of governmental functions by the state.”35 No ­matter who actually puts up the money, “if a ser­vice is mandated, the funds come from the wallets of state taxpayers.”36 New York is among the most controlling of state governments, issuing statutory and regulatory provisions to local governments requiring a ser­vice but without funding to accompany it.37 In general, ­there are three kinds of mandates to local governments. Type I mandates require specific activities. For example, ­every community in New York State must provide a system of public schools that meets an elaborate range of requirements. Type II mandates are advisory but not legally binding and often are so popu­lar po­liti­cally that few local officials can avoid them. In 2020 and 2021, for example, many local school districts ­were encouraged by the states to open their schools, but no funds ­were provided to increase COVID safety mea­sures; in fact, schools saw their overall state aid cut. A former Albany mayor said long ago, “­You’re damned if you do and damned if you d­ on’t. It’s not a mandate, but you look like a bum if you ­don’t do it.”38 Fi­nally, Type III mandates do not require par­tic­u­lar ser­vices but set state standards for ­those that are provided. For example, towns and villages need not have their own police forces and may instead rely on county and state law enforcement officials, but if they choose to have their own police officers, they must meet a long series of state standards as to training, equipment, and procedure. Local governments in New York State have suffered as much from the ­underfunding of established programs as they have from all three types of un­ funded mandates. While the state has followed the national trend of improving its public schools, it has placed on local governments the fiscal burden of improved special education, computer training, higher teacher standards, and so on. When state aid declines, most local governments have no option but to ­either cut costs or raise real estate taxes. ­Under state law, “they can assess prop-

N e w Yo r k i n t h e F e d e r a l Sys t e m

45

erty for tax purposes on their own and set their own property tax rates but most other policies e­ ither are strictly constrained or require explicit approval by the legislature. Counties can only impose sales taxes within limits established by the state, and cities, villages, and towns generally do not have this option.”39 In general, “if local communities do not want to cut their educational programs, they ­will have to increase local property taxes more than would other­ wise be necessary.”40 Even if they want to increase spending on schools (or anything e­ lse), state law requires a 60 ­percent vote in a referendum to raise local taxes by more than 2 ­percent. “As with many generalizations about New York government, New York City is dif­fer­ent. The state legislature has authorized a full complement of taxes for New York City, giving it a tax structure more like that of a large urbanized state than other local governments in New York. The city has a large personal income tax with a progressive rate structure, a corporate income tax, a bank tax, and many other individual taxes. But even New York City can only do what the state legislature allows.”41

The Tangled Web of Local Government No other state has a more elaborate, less efficient, or more expensive complex of local entities than New York. Former Albany Times Union columnist Dan Lynch fondly noted that if you fired ­every single state employee in New York—­leaving only local officials—­there would still be more government employees per capita in New York than in neighboring Mas­sa­chu­setts. This complex, often redundant pattern has its roots in three strands of state history. The first strand, the New E ­ ngland system in which the town is the dominant unit of administration, was brought across the Long Island Sound and over the Berkshire Mountains into the early Yankee settlements on Long Island and along the Connecticut, Mas­sa­chu­setts, and Vermont borders. “Its essential feature perhaps is its simplicity. . . . ​Confronted with the unknown dangers of the new land, they [the colonists] settled in enclosed areas sufficiently large to produce the food required for their sustenance and yet compact enough to be adequately defended from hostile Indians. By the force of circumstances, the bound­aries of their early communities ­were determined by their economic requirements.”42 The second strand has its roots in both the commercial and patron systems of the Dutch and the surprisingly compatible En­glish county system. Seen in most southern states is a system consisting of relatively large units of local government in which “townships exist in name only or not at all.”43 In this system, counties became the seats of the courts, law enforcement, and most government functions. Fi­nally, local governments in New York have

46 C h a pt e r  2

a western ele­ment with the Northwest Ordinance’s creation of thousands of new settlements in the Adirondacks and Niagara Frontier. Counties in this part of the state w ­ ere divided into townships of thirty-­six square miles each; some of t­ hese w ­ ere quickly populated, and o ­ thers ­were not. Local government in ­these counties ranged from strong to non­ex­is­tent. As if this mixed pattern of local governance w ­ ere insufficiently complex, the rapid growth of New York City (and to a lesser extent Albany) led the city to demand and receive special status. That special status pertains primarily to New York City and the “Big Five” cities of Albany, Buffalo, Rochester, Syracuse, and Yonkers. In 1801, the legislature compounded the confusion further by conferring the title of “village” on Troy and Lansingburgh, a designation that became increasingly in­de­pen­dent of other bound­aries, to the extent that by 2000 ­there w ­ ere seventy-­seven “villages” located in more than one “town.” A resident of the Village of Harriman thus pays local property taxes to the village, Orange County, and e­ ither the Town of Woodbury or Monroe. More than 65 ­percent of the state’s 1,526 cities, towns, and villages have fewer than five thousand residents.44 The picture becomes still more complex when we add to the mix the thousands of other government entities—­school boards, w ­ ater authorities, fire districts, highway and bridge authorities, park commissions, library commissions, development authorities, and so on—­that sometimes overlap with other jurisdictions. Special districts for fire, sewers, streetlights, and ­water are commonplace in New York and often have their own taxing power. Authorities—­ though funded by revenue bonds rather than taxes—­also play an impor­tant role in local governance. The Metropolitan Transit Authority (MTA), one prominent example, controls the subways, most of the bus routes, and the major commuter rail lines into and out of New York City, yet the MTA is not a part of the city’s governing structure. Like most public authorities, the MTA has its own governing board and the power to borrow on its own; is exempt from taxation and civil ser­vice rules; and is immune in many re­spects from control by the mayor, governor, and legislature. New York prob­ably relies upon public authorities to provide government ser­vices more than any other state. Beyond the usual po­liti­cal and financial arguments for the creation of authorities rather than ordinary line agencies, in New York t­ here are additional constitutional f­ actors: the state constitution limits the number of state departments to 20; requires “full faith and credit” backing for state debt; and—­very importantly—­requires cumbersome statewide referenda for increases in state debt. The authori-

N e w Yo r k i n t h e F e d e r a l Sys t e m

47

ties escape ­these restrictions since they are separate, largely autonomous corporations that are not operating departments of the state.45 The Department of State counts 190 major public authorities with statewide significance, 68 other state authorities, 474 with local jurisdiction, and 8 with interstate or international jurisdiction, for a total of 740 as of 2018.46 Fi­nally, to confuse the picture still more, vari­ous state agencies and municipalities have established a variety of quasi-­independent public corporations that are often granted, paradoxically, “more flexibility than the jurisdictions which establish them.”47 The Research Foundations of SUNY and CUNY, for example, provide college administrators with funds for programs and supplies that are not within the bounds of their regular bud­get authority. Most of the state’s larger cities have local development corporations that can buy and sell property and broker deals between private corporations and mainstream government agencies. And many towns include special sewer, ­water, and other special jurisdictions with the power to levy taxes or fees in exchange for a specific set of neighborhood ser­vices. All of ­these local units are—­following Dillon’s Rule—­creatures of the state and could in theory be abolished tomorrow. The po­liti­cal logic of localism, however, is as strong as its economic logic is weak. Attempts to “streamline” local government by eliminating smaller, less efficient units have generally failed. The state has for many years, for example, offered strong economic incentives for the merger of small school districts but has found few takers. Small towns that could save money by contracting out police ser­vices from the county continue to provide their own police forces. Municipal consolidations are rarities, and it seems to be in the nature of New York politics to create more rather than fewer governments.

Judicial Federalism In New York—as in all the other US states—­a federal court system operates alongside and in some senses on top of a system of state and local courts. Although the US Constitution seems clearly to define the Constitution, laws, and treaties of the United States as “the supreme law of the land,” ­legal realities are more complex. Like issues of money and politics, federalism in the courts is intricate. In the state and federal systems, ­there are two types of courts: trial courts, which hear the evidence in specific cases and apply the law in such m ­ atters as divorce, personal injuries, crime, and housing; and appellate courts, which deal with disputed interpretations of the law and get into the

48 C h a pt e r  2

game only when the losing party appeals the trial court’s procedures or ­legal rulings. The US Constitution established a Supreme Court as an appellate court for nearly all cases arising from the Constitution, and in some extraordinary cases (such as t­ hose involving foreign diplomats) the Supreme Court functions as a trial court. Congress defines the Court’s appellate jurisdiction and establishes other federal courts. In the Judiciary Act of 1789, Congress refused to bestow on federal courts all the jurisdiction to which the Constitution entitles them. At that time. Congress was prepared to allow the state courts to ­handle a considerable part of what could have been federal court business. Notably, “federal question” suits ­were left to the state courts, and it was not u ­ ntil ­after the Civil War in 1875 that the federal courts ­were authorized to exercise all the kinds of federal jurisdiction specified in the Constitution.48 Federal courts—­the Supreme Court in particular—­have tended generally to expand the scope of what they are likely to consider “federal questions.” As early as Martin v. Hunter’s Lessee (1816), the Supreme Court rather strongly asserted its power to review the decisions of state supreme courts. Slowly but steadily broadening its interpretation of the Constitution’s commerce clause to cover virtually any significant form of economic activity, the Supreme Court significantly expanded the legally sanctioned role of the national government and, by extension, the Court’s own jurisdictional reach. Similarly, the Supreme Court’s use of the ­Fourteenth Amendment to apply the bill of rights to the states—­begun during the ­later years of the New Deal and largely associated with Earl Warren’s tenure as chief justice (1953–1969)—­expansively interpreted federal authority with regard to racial equality, freedom of speech, and a wide range of issues involving state criminal procedures and the rights of the accused. Decisions during this period, especially t­hose in the area of criminal justice, expanded federal power into jurisdictional areas once patrolled almost exclusively by the states. T ­ hese centralizing trends largely w ­ ere preserved ­under the supposedly more conservative chief justice Warren Burger (1969– 1986). The Supreme Court began to move in the direction of a states’ rights in the last years of William Rehnquist’s 1986–2005 tenure as chief justice, with at least thirty-­three federal statutes thrown out in the 1995–2005 period alone.49 But the Supreme Court ­under Chief Justice John Roberts (2005–) seems to use federalism less as a consistent theory and more as a tool to achieve par­tic­u­lar policy outcomes. While a number of federal administrative rules—­such as ­those approving drugs and medical devices, banning the use of medical marijuana, and outlawing assisted suicide—­have been held to preempt state laws, the Supreme Court also has used the doctrine of states’ rights to prohibit federal regulations of the rights of state employees and business practices. Deci-

N e w Yo r k i n t h e F e d e r a l Sys t e m

49

sions appear to be based less in a philosophy of federal and state powers than in a general tendency to oppose both federal and state regulation of business and greater protection of civil liberties and to put the Court—­rather than the states or Congress—in the position of drawing the bound­aries between federal and state powers of regulation. With President Trump having appointed three of the Court’s nine members, it is expected to become still more conservative, particularly with regard to social issues including abortion. In general, where no impor­tant “federal question” is involved and the question concerns a state issue, the final say on issues of law resides in the state’s highest court, known in New York as the Court of Appeals. Federal courts ­will not normally intervene in a ruling based on state law ­unless the ruling is clearly in conflict with federal law. In strictly ­legal terms, however, limits on federal jurisdiction are permeable. All that the loser in a case de­cided by his or her highest state court needs to exercise an automatic right to appeal to the federal courts is a showing that the case involves a “federal issue.” Given the scope of the Supreme Court’s interpretations of the commerce power and the ­Fourteenth Amendment, the potential scope of this right is enormous. In practice, the range of issues the federal courts w ­ ill treat as involving “federal questions” is not nearly so extensive. As C. Herman Pritchett notes, “federal legislation provides a right of appeal to the Supreme Court from any decision of a state court of last resort declaring a federal law or treaty unconstitutional, and also from any state court decision upholding a state law or constitutional provision against a substantial challenge that it conflicts with a federal law, treaty, or constitutional provision. While in theory the Supreme Court must accept such appeals, in practice most of them are rejected for “for want of a substantial federal question” or on other jurisdictional grounds.”50 In interpreting state law, the federal courts are required to treat the rulings of the states’ highest courts as definitive. Federal courts ­will not generally intervene in the absence of a clear and unambiguous conflict with federal law, though t­ here are cases in which a more activist federal court may overrule state actions. Theoretically, state courts have no discretion; they “must not only give pre­ce­dence to federal law over state law but also interpret that law in line with rulings of the United States Supreme Court.”51 Despite the presumed supremacy of federal law, noncompliance does occur. ­There is sufficient leeway in the interpretation of federal court rulings that it would be erroneous to “conclude simply that the Supreme Court is the commanding officer and that a major state’s highest tribunal is a usually obedient but occasionally recalcitrant private.”52 As with most questions depicting the relations between the federal government and the states, judicial federalism is less a ­matter of doctrine than of evolving practice.

50 C h a pt e r  2

Federal Courts in New York State In large part b­ ecause of New York City’s role as a center of business and finance, New York State generates a disproportionate share of business for the federal courts. Only Washington, DC, has a greater number of l­awyers per capita than New York. At the appellate level, the United States is divided into twelve regions called cir­cuits. New York is part of the Second Cir­cuit, encompassing New York, Connecticut, and Vermont. T ­ here are four federal trial courts in New York State: the Northern District, with chambers in Albany, Binghamton, Syracuse, and Utica; the Southern District, at Foley Square in lower Manhattan; the Eastern District, in Brooklyn; and the Western District, which divides its sessions between Buffalo and Rochester. National legislation also created a rich variety of specialized courts and administrative agencies that function in some ways as if they ­were courts. Magistrates help relieve the burdens of federal district courts by dealing with the less serious cases. All bankruptcy cases are heard by federal courts, while immigration and tariff courts address cases dealing with immigration and tariffs, respectively. Increasingly, the national government has worked to relieve the growing caseload of federal courts by delegating both rulemaking and adjudicating powers to vari­ous administrative agencies, with the result that so-­called administrative law is one of the fastest-­growing areas of conflict resolution at both the state and national levels. Although this trend has undoubtedly freed the courts from having to consider a large number of relatively arcane and technical issues—­which many judges are ill prepared to consider—­the growing linkage of administration and adjudication has troubled many observers. B ­ ecause administrative agencies are at least one step removed from the po­liti­cal constraints inherent in popu­lar democracy, their power holds frightening potential. Agencies’ quasi-­judicial functions give them additional powers that courts may be unable to control ­because of the volume of cases that flow through administrative channels. And unlike courts, administrative agencies are able to follow through on their adjudicatory decisions by implementing them without reference to another agency. Thus executive branch administrative agencies have powers that neither a legislature nor a court can match. T ­ hose powers have the potential of transforming the ­legal system from a court-­centered pro­cess to one that is administration-­centered.53

The State Court System An overwhelming proportion of ­legal issues are resolved at the state or local level, with roughly three hundred state filings for ­every one ­going to a federal

N e w Yo r k i n t h e F e d e r a l Sys t e m

51

­Table 2.1  New York State’s court system COURT

NUMBER OF JUDGES

HOW JUDGES ARE SELECTED

TERM

Court of Appeals

7

Appointed by governor, with State Senate consent

14 years

Appellate Division

Varies

Designated by governor from elected state supreme court justices

Varies

Supreme Court

328a

Elected

14 years

Court of Claims

26

Appointed by governor, with State Senate consent

9 years

Surrogate’s Court

31

Elected

14 years in New York City; 10 years in the rest of the state

County Court

129

Elected

10 years

­Family Court

127

Appointed by mayor in New York City; elected in rest of state

10 years

Civil Court of New York City

120

Elected

10 years

Criminal Court of New York City

107

Appointed by mayor

10 years

District Court

50

Elected

6 years

City Court

162

Most elected; some appointed

Varies by city

Town Court

2,000 (approx.)

Elected

4 years

Village Court

570 (approx.)

Elected

Varies

Source: Adapted from New York Department of State, Local Government Handbook, 2018 edition (Albany: New York State, Department of State, 2018), chap. 3, 22–23. a

Includes justices designated to the Appellate Division and Terms. Does not include certified justices of the Supreme Court (the number may vary significantly each year).

court. The state court system, consequently, is considerably larger and more complex than its federal counterpart, though the basic structure is similar (see ­table 2.1). At the apex of the system is the New York State Court of Appeals (New York and Mary­land are the only states that do not call their highest courts “supreme courts”). The Court of Appeals, whose seven members are appointed to fourteen-­year terms by the governor with the advice and consent of the State Senate, is New York’s court of last resort and ­handles cases only on appeal. Most of its cases come from one of the four appellate divisions of the state supreme court. ­These appellate courts consist of two seven-­member courts, located in Manhattan and Brooklyn, and two five-­member courts, in Albany and Rochester, supplemented by supreme court justices serving on

52 C h a pt e r  2

temporary assignment. Like all appellate courts, ­these courts do not have juries, do not deal with the facts of the cases brought before them, and instead correct errors of l­egal procedure and interpretation brought to them on appeal from courts of original jurisdiction. What New York calls its “supreme court” is its trial court of general jurisdiction, composed of 327 justices elected from twelve judicial districts, with the number of justices ranging from 52 (in the district covering Brooklyn and Staten Island) to just 10 justices in the Binghamton area. ­These courts are technically empowered to ­handle most significant criminal and civil cases in their jurisdictions, but in practice, separate civil courts largely h ­ andle most disputes between private parties. Most impor­tant criminal cases (aside from ­those in New York City) are handled by the county courts. New York City elects most of its civil and supreme court justices, but the mayor can fill vacancies and appoint magistrates to certain criminal courts. When the criminal caseloads are high, civil court justices are often appointed (by the court administrator) to serve as “acting” criminal court judges. Upstate, the system becomes more complex, with dif­fer­ent parts of the state or­ga­nized in dif­fer­ent ways. In smaller towns and villages, t­here are more than two thousand town and village justices—­who, in many New York jurisdictions, do not have backgrounds in the law—­that ­handle most misdemeanor offenses, drunk driving cases, f­ amily disputes, traffic violations, and so on. The business of t­ hese “cafeteria courts,” as they are sometimes called, “is to pro­cess large numbers of cases quickly and with an ele­ment of bureaucratic efficiency. . . . ​Much of the work occurs in private—­meetings between opposing council and conferences with the judges in chambers.”54 In New York City and many of the larger urban areas, ­these duties are usually parceled out among vari­ous specialized courts for traffic and parking violations, ­family disputes, probate, and housing. Despite the apparent complexity of New York’s judicial system, its essential features are ­those characteristic of state judicial structures throughout the United States. In their origins, state judiciaries grew out of local communities having some sort of judicial presence, usually in the form of a justice of the peace or local magistrate. Gradually, ­these ­were supplemented by criminal and civil trial courts for more impor­tant cases (usually at the county seat). The state systems all tended to evolve hierarchically, with specialized components in which some courts w ­ ere better staffed and dealt with more significant cases than o ­ thers. Clear jurisdictional distinctions also emerged between courts dealing with civil or criminal ­matters and, within ­these categories, l­egal specializations such as ­family law, small claims, traffic, and so on. Still, ­there is a fairly clear judicial pecking order in which trial courts are considered “inferior” both in staffing and role to the “higher” courts of appeal. Fi­nally, more than in any

N e w Yo r k i n t h e F e d e r a l Sys t e m

Box 2.1 New York’s Justice Courts “I just follow my own common sense, and the hell with the law,” said one of New York’s town justices in describing how he decides cases. New York is one of thirty states that continue to rely on in­de­pen­dent, local tribunals to ­handle many aspects of the state’s l­egal workload. The state’s 1,277 justice courts, with nearly 2,200 elected magistrates, operate in most of the state’s smaller towns and even in suburban localities with more than one hundred thousand residents. Locan magistrates collectively ­handle more than two million cases a year, nearly half the total caseload of the state system. Only a small minority of the state’s town justices have ­legal training beyond six days of classes and an annual refresher course. The test for qualification is so easy that almost no one fails, and town justices are exempt from mandatory retirement at age seventy, a requirement that applies to other state judges. While most of the cases adjudicated in ­these courts involve relatively trivial misdemeanors and traffic violations, they have the power to arraign all crimes committed in their localities and to determine civil cases involving up to $3,000. In a series of 2006 articles on t­hese courts, the New York Times found fundamental denials of l­egal rights, defendants illegally jailed, racial and sexual bigotry, and denials of the basic presumption of innocence. A 2012 study by the Fund for Modern Courts found numerous instances of tenants being evicted without notice, sloppy rec­ord keeping, and summary ­trials. At the same time, many supporters of the system—­particularly in rural areas—­staunchly defend the flexibility, sensitivity to local mores, and more personalized approaches to cases that the town justice system encourages. A 2006 report on the system, prepared ­under the direction of Chief Judge Judith Kaye and Jonathan Lippman, chief administrator of the unified court system, called for better training and a number of administrative and procedural reforms but ­stopped far short of a major restructuring. The New York State Commission on Judicial Conduct recently estimated that the number of l­awyers serving as justices had increased to more than seven hundred in 2016 from four hundred in the 1980s, but l­ittle ­else has changed.55

53

54 C h a pt e r  2

other nation, t­ here is a proliferation of the right to appeal. As in most states, the basic structure of the judicial system in New York mirrors what it was in colonial times, helping to produce a “paradox of unity and diversity”—­a system that despite its extraordinarily decentralized organ­ization provides remarkably uniform outcomes.56 This uniformity of outcomes is attributable in part to the looming appellate jurisdiction of the higher courts. Even more impor­tant, however, is the Anglo-­American common law tradition that makes precedent—­stare decisis—­ the controlling paradigm of ­legal practice. ­Legal research in the United States is deeply steeped in a tradition of finding comparable cases. A ruling in the First District becomes a key point in the brief submitted by l­ awyers arguing a comparable case in the Eighth District. Rulings at the appellate level are more compelling, and rulings of federal courts still more so. And although ­there is no ­legal requirement that they do so, “the basic character of the American ­legal system encourages state supreme courts to consult and borrow from the decisions of ­sister courts.”57 Judges, defense attorneys, and prosecutors share an aversion to the time and expense of appeal; if the pre­ce­dent is clear, so be it. On impor­tant issues of both substance and procedure, the congruence of laws between and among the several states is one of its most striking features. For example, a ­lawyer trained in California is not likely to find it particularly difficult to pass the bar exam in New York. At the same time, ­there are few policy arenas in which federalism and local customs count for more than in the courts. ­There are ­whole categories of impor­tant cases that almost never move beyond the state level and in which the guiding princi­ples of justice are set almost entirely by judicial pre­ce­dent rather than statutory law. In effect, state courts are policymaking institutions in such impor­tant areas as divorce and child support, personal injury and medical malpractice, business contracts, real estate, and liability. And local courts, though theoretically constrained by pre­ce­dent and the threat of appeal, are practically sovereign within their spheres. “The local judge who invariably sends drunken d­ rivers to jail, the judge in the next county who throws the book only at youthful drug offenders, and the judge who sits in the court­house making life miserable for errant spouses who have fallen ­behind in their child support and alimony payments—­all are making policy.”58

Other Intergovernmental Relations Just as the courts frequently look to one another in deciding cases, governors, legislators, lobbyists, and bureaucrats pay considerable attention to what is

N e w Yo r k i n t h e F e d e r a l Sys t e m

55

happening in other states and localities. Organ­izations such as the National Conference of State Legislators and comparable convocations of governors, mayors, and attorneys general provide formal mechanisms of communication. More impor­tant, issue-­specific groups—­from welfare rights advocates to stockbrokers—­frequently bring together lobbyists, legislators, and civil servants working in dif­fer­ent states on the same issues. T ­ hese “issue networks,” as they are sometimes called, are an impor­tant source of policy initiatives, frequently developing “model” codes for adoption. Beyond the informal borrowing of ideas that constantly take place at t­ hese and other forums, New York’s governing bodies are involved in an enormous web of interstate and international institutions, arrangements, and formal agreements. Most of the state’s formal interstate relations involve agreements with adjacent states, including Vermont, Mas­sa­chu­setts, Connecticut, New Jersey, Pennsylvania, and Ohio. Still, New York has links with ­every state in the ­union. An alliance of states interested in protecting ocean resources for example, connects New York with states as far away as Alaska and Hawaii. An Interstate Compact on the Placement of C ­ hildren in Interstate Adoption includes forty-­ nine states and two territories. And the state has entered into numerous agreements with the adjoining Canadian provinces of Ontario and Quebec, ranging from highly specific arrangements for the joint maintenance of bridges over the St. Lawrence River to complicated compacts governing the state’s purchase of hydroelectric power generated in Canada. The US Constitution contains three types of provisions on interstate relations. The first provides mechanisms for settling disputes between states and for establishing joint programs. The second governs the rights of citizens caught in conflicts of jurisdiction between differing state laws. And the third gives the Supreme Court original or trial jurisdiction in cases involving suits between states. This last provision has been used sparingly in recent years ­because states have been able to work out their disputes without resorting to the courts. Beginning with New York v. Connecticut (1789), the courts ­were frequently used in settling boundary disputes in the early years of the nation.59 More recently, the handful of state-­versus-­state cases coming before the Supreme Court have revolved largely around issues of w ­ ater rights. Even in this sensitive area, however, it is the exceptional case that actually goes to court.

Interstate Compacts Interstate compacts are used to resolve boundary disputes, manage the interstate allocation of resources, and address a range of policy areas from interstate transportation to corrections. For example, New York State has resolved a

56 C h a pt e r  2

number of ­water issues with neighboring states through the device of interstate compacts, such as the Champlain Basin Compact (1966) with Vermont; the G ­ reat Lakes Compact (1960) with the eight states bordering the lakes; and the Delaware River Basin Compact (1961) with New Jersey, Pennsylvania, and Delaware. Congress initiated the compact to solve the prob­lems of the Delaware River basin, making the federal government a partner with four states. In years with ­little rainfall, what New York State and local governments do with the Delaware River—­both in terms of extracting its w ­ ater and dumping sewage—­dramatically impacts downriver communities in Pennsylvania, New Jersey, and Delaware. Sporadic attempts by the states to negotiate ­water use agreements w ­ ere largely unsuccessful ­until the federal government forced the four states to come together in 1961. Creation of the Delaware River Basin Commission allocated power to regulate the river’s flow by setting limits on how much w ­ ater communities in each state can use and how. Similar federal-­ state compacts involve New York in the Appalachian Regional and Susquehanna River Basin Commissions. The large role played by the federal government in establishing the Delaware River Commission is somewhat exceptional but at the same time illustrative of the enormous po­liti­cal barriers that commonly prevent the more widespread use of interstate compacts. The classic interstate compact is one initiated and administered entirely by agreement between the affected states. Compacts of this kind typically require tentative agreement between the cooperating states, enactment into law by each of the participants, and the formal approval of Congress. The key po­liti­cal actors are the states in question, and it has generally been their inability to reach agreement that has frustrated widespread use of such compacts in recent years. One of the earliest and still most significant of t­ hese compacts is the 1921 creation of the Port Authority of New York and New Jersey. The Port Authority is an enormously wealthy and power­f ul institution, controlling more resources than many states. What the Port Authority has been able to do, and what the states could prob­ably not do on their own, is to coordinate a number of transportation alternatives to benefit the region as a w ­ hole. In overseeing the major airports—­ Kennedy, Newark, and LaGuardia—­the Port Authority has produced a reasonably equitable balance of economic benefits and air transit efficiencies that interstate rivalries never would have achieved. Critics argue that the Port Authority ­favors New Jersey, developing the area’s maritime freight facilities at the expense of New York Harbor. Like most in­de­pen­dent authorities funded through bonds, the Port Authority of New York and New Jersey has not been a model of fiscal restraint. Completion of the World Trade Center in 1972 created a glut in the Manhattan real estate market that set the private sector back

Box 2.2 Interstate Compacts and State Law To form an interstate authority, states must agree and have the compact approved by Congress. Getting out of a compact can be more difficult. In 1940, New York and seven other states entered into a compact to control pollution in the Ohio River. To develop and enforce regulations regarding sewage, they created the Ohio River Valley W ­ ater Sanitation Commission, consisting of three at-­large members and three members from each state. In 1949, West ­Virginia—­one of the eight states represented on the commission—­got into a fight with the commission over a ban on certain kinds of pollution and refused to pay dues. The supreme court of West ­Virginia upheld the state’s position, arguing that the 1940 compact could not supersede subsequent state laws. The case was appealed by the other seven states to the US Supreme Court, where West ­Virginia lost. A compact, Justice Felix Frank­furter wrote for the majority, is ­after all a ­legal document. . . . ​It requires no elaborate argument to reject the suggestion that an agreement solemnly entered into between states . . . ​can be unilaterally nullified, or given final meaning by an organ of one of the contracting states. A state cannot be its own ultimate judge in a controversy with a ­sister state. . . . That a legislature may delegate to an administrative body the power to make rules and decide par­tic­u­lar cases is one of the axioms of modern government. The West ­Virginia court does not challenge the general proposition but objects to the del­e­ga­tion ­here involved ­because it is to a body outside the State and b­ ecause its legislature may not be ­free, at any time, to withdraw the power delegated. . . . ​ We find nothing in that to indicate that West ­Virginia may not solve a prob­lem such as the control of river pollution by compact and by the del­e­ga­tion, if such be necessary, to effectuate such a solution by compact. . . . ​The compact involves a reasonable and carefully ­limited del­e­ga­tion of power to an administrative agency.60 West ­Virginia, in the Court’s view, could not unilaterally withdraw from the compact once it was in force. This remains the prevailing law. Less formal agreements between states, or agreements involving both the states and the federal government that are not formally approved by Congress, are another story. Thus a clear agreement to rebuild the train tunnels connecting Amtrak and New Jersey’s commuter lines to New York City was unilaterally squashed in 2010 by New Jersey governor Chris Christie when he simply changed his mind and refused to pay his share. The agreement simply lapsed.

58 C h a pt e r  2

by a de­cade and significantly decreased New York City’s tax base. ­Because the Port Authority operates in­de­pen­dently of the state, sewage from the former World Trade Center, in contrast to e­ very other building in lower Manhattan, flowed unfiltered into the Hudson River. The complicated web of deciding which units of government had responsibility for what aspects of the proj­ect impeded rebuilding when the Twin Towers ­were destroyed on 9/11. Having paid the bondholders that financed construction of the Hudson River crossings—­such as the George Washington Bridge and Lincoln Tunnel—­the Port Authority has become a cash cow whose revenues both New York and New Jersey covet. Even its sharpest critics concede, however, that the Port Authority has produced a level of substantial regional development that prob­ ably could not have been attained absent a formal agreement.61 Despite the relative success of agencies such as the Port Authority and the Delaware River Commission, almost no significant interstate authorities have been created in the past three de­cades, and the rush to sign such agreements appears to have peaked in the 1950s and 1960s. T ­ here are many less formal agreements between states and numerous compacts that do not involve the kinds of separate governing bodies that the more prominent agreements involve. Numerous interstate compacts, such as the 1965 Driver’s License Compact, the 1960 Placement of ­Children Compact, and the 1977 Parole and Probation Compact, operate rather quietly at the agency-­to-­agency level and do much to facilitate relations between the states.

Full Faith and Credit Many of the less vis­i­ble interstate compacts, such as t­ hose governing ­drivers’ licenses, are designed to deal with prob­lems that arise when dif­fer­ent states have dif­fer­ent laws. Rather than invade the prerogatives of the states by developing a national l­egal system, article IV, section 1 of the US Constitution attempts to balance diversity with sufficient uniformity to facilitate commerce and exchange between the states. Article IV, section 1 establishes the princi­ple of reciprocal recognition by stipulating that “full faith and credit ­shall be given in each state to the public acts, rec­ords, and judicial proceedings of e­ very other state.” A contract signed in Mas­sa­chu­setts or a driver’s license issued in New Jersey should be valid in New York. The “full faith and credit” clause of the Constitution left it to Congress to “prescribe the manner in which such acts . . . ​ ­shall be proved,” but Congress has left the ­actual pro­cess pretty much up to the states and the courts. Article IV of the Constitution also guarantees citizens the “privileges and immunities” granted by other states. A person living in New York is as entitled

N e w Yo r k i n t h e F e d e r a l Sys t e m

Box 2.3 The Port Authority of New York and New Jersey The Port Authority of New York and New Jersey is the country’s largest single metro-­area transportation provider. Controlling the ports of the two states, the bridges and tunnels connecting them, six airports, rail lines, and real estate, the Port Authority’s annual bud­get of more than $8 billion exceeds that of nine states. Described by a student as both “marvelous and disturbing to behold. . . . ​Marvelous ­because it . . . ​accomplished ­great feats of engineering, and carried them forward ­under a banner of interstate cooperation, with unexpected speed and without direct burden to the taxpayer. Yet disquieting . . . ​­because [it] avoided close demo­cratic controls.”62 The Port Authority is governed by an unsalaried board of directors, half appointed by the governors of each state, who also retain vetoes over the board’s decisions. Increasingly the governors’ veto power has transformed the board “from an in­de­pen­dent body to a rubber stamp of gubernatorial objectives.” Thus, despite a charter that limits the authority’s jurisdiction to a twenty-­five mile radius around the Statue of Liberty, the Port Authority also included financial aid to the airports in Atlantic City, New Jersey (120 miles away), and Newburg, New York (seventy-­five miles away) in a deal between the two governors. Infamously, funds to match federal grants for needed replacement and repair of the Hudson River rail tunnels damaged by Superstorm Sandy was vetoed by New Jersey “Governor Chris Christie in ­favor of redirecting resources to the Pulaski Skyway b­ ecause of a funding shortfall in the New Jersey transportation trust fund.”63 In effect, the Port Authority pays for new proj­ects and t­hose entities that lose money through airport departure fees and tolls on the authority’s bridges and tunnels. The governors’ potential vetoes are the public’s only means of challenging how t­hese fees and funds are allocated. The authority also has been unusually generous to its employees. One 2014 study found it was paying an average of more than $150,000 per worker in salaries and benefits.64 Relatively ­free of scandal and generally well run, the in­de­pen­dence of the Port Authority has frustrated efforts to develop coordinated transportation and infrastructure policies for the region as a ­whole, but the authority has proved to be a difficult agency to reform. Major restructuring bills passed both h ­ ouses of both state legislatures in 2014 but ­were vetoed by Governors Andrew Cuomo and Chris Christie.

59

60 C h a pt e r  2

to own property or do business in Vermont as is a native Vermonter. T ­ here are significant limitations on this right. A member of the New Jersey bar, for example, cannot practice law in New York without passing the New York bar exam, and it is perfectly ­legal for the State and City Universities of New York to charge higher tuition rates to t­ hose who are not l­egal residents. Fi­nally, the states also are expected to cooperate in enforcing one another’s laws. Through a procedure known as extradition, the authorities in one state can ask another state to return a suspected felon for trial. Although such requests are generally honored, New York sometimes refused to return Black defendants to southern states in the 1940s and 1950s when a segregationist system of justice made it unlikely that t­ hese defendants would receive a fair trial. In 1994, Governor Mario Cuomo refused to extradite to Oklahoma a man who had been accused of murder b­ ecause he was serving a life term for murder in New York. Unlike Oklahoma, New York at that time did not have capital punishment, to which Governor Cuomo was philosophically opposed. One of George Pataki’s first acts as governor in 1995 was to extradite the man in question to Oklahoma, where he was subsequently tried, convicted, and executed. The US Constitution, through the full faith and credit clause, extradition, and the privileges and immunities clause, imposes some loose degree of reciprocity and uniformity in state law. The realities of commerce and a more mobile lifestyle make such cooperation even more cogent. And the law has in many ways been nationalized. Since 1897, when the West Publishing Com­ pany began indexing and compiling the decisions of state courts, l­egal pre­ce­ dents have flowed with growing frequency across state lines. Computerization has accelerated this flow, and federal statutes and court decisions have brought further uniformities to the judicial pro­cess. And yet, “the strug­gle between uniformity and diversity, between centralism and localism, goes on without let and without end. . . . ​The basic issue is power: where it is placed, and who should exercise it. The structural features of the ­legal system reflect the distribution of power, and, at the same time, influence or perpetuate power. . . . ​ In short, decentralization does not vanish, even in the teeth of the master trend of American l­egal history.”65

The Politics of Federalism Former Speaker of the US House of Representatives “Tip” O’Neill once said that “all politics is local,” a phrase that has become an aphorism of American politics. What is equally true, though less frequently acknowledged, is that all local is politics. It is not the Tenth Amendment, tradition, or philosophy that

N e w Yo r k i n t h e F e d e r a l Sys t e m

61

sustains decentralization in US law and government so much as it is the localized nature of politics in the United States. Even the Supreme Court has acknowledged that “state sovereign interests are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power.”66 Professor Grodzins, in his essay developing the “marble cake” image of federalism, argued that “the parties are responsible for both the existence and form of the considerable mea­ sure of decentralization that exists in the United States.”67 ­Whether po­liti­cal parties continue to play as vital a role in sustaining federalism as they did three de­cades ago is not clear. What remains clear, however, is the local focus of so much of the dynamic of US politics.

C h a p te r   3

Parties, Po­liti­cal Changes, and Elections

New York State’s po­liti­cal parties are among the most disciplined in the United States. ­Every one of the thousands of bills and resolutions that come to a vote in both ­houses passes. This staggering level of consensus is not the result of legislators universally agreeing with one another on the issues. In fact, ­there is plenty of disagreement among rank-­and-­file legislators in Albany, and we may expect to see and hear more conflict as newer, more ideologically oriented members take seats on both sides of the aisle in the Assembly and Senate. Although total party unity is not always achieved, bills are not defeated in the New York legislature ­because the majority-­party leaders have absolute control over their chamber’s agenda. If the secret meetings of the party conferences show that ­there may not be enough votes to secure passage, bills w ­ ill not go to the floor u ­ nless and u ­ ntil the leaders can find enough votes to be sure of winning. Leaders w ­ ill move a bill to the floor only when, b­ ecause of arm-­twisting or making changes in the bill, they know they have enough votes in their own conferences to win in the Assembly or Senate as a w ­ hole, or the leaders ­will drop the bill entirely. As power­f ul as the Assembly and Senate party leaders are inside their respective ­houses, their horizontal influence on the offices of elected officials outside of the legislative branch does not keep pace. T ­ here is virtually no connection between the party systems that control the two ­houses of the legislature and the offices of the governor, attorney general, and comptroller. Despite 62



Pa rt i es , P o ­l i t i ­c a l C h a n g es , a n d E l ec t i o n s

63

the strength of Demo­cratic leaders in the legislature, they have relatively l­ ittle influence in other elections. Candidates for governor, attorney general, and comptroller seldom coordinate their campaigns with one another or with fellow party members in the legislature. Vertically, t­ here is comparable fragmentation, with individual legislative campaigns revolving more around local issues and personalities than the nuances of Albany politics. The six central campaign committees—­those for each of the parties’ state committees and their Assembly and Senate counter­parts—­play in­de­pen­dent roles in bankrolling and managing key campaigns. Still, the politics of primary elections is largely local. Nominations are won and lost less by centralized organ­izations than by what students of campaigns call “candidate-­centered co­ali­tions,” which in New York often involve third parties.

The Evolving Party System The two major parties—­Democratic and Republican—­occupy all of the state’s key po­liti­cal offices; however, minor parties play a much more impor­tant role in New York than in perhaps any other state. The Republican and Demo­cratic Parties in New York are loosely allied with their counter­parts in the other forty-­ nine states and parties at the national level, and voters sometimes penalize and reward New York politicians on the basis of national policies over which they have relatively ­little control. Aside from national party rules governing presidential nominations, voting rights laws, and some rules regarding the conduct of elections, New York’s elections are conducted in accordance with state laws and state party rules. State laws give the parties a quasi-­legal status in which they remain private, self-­funded organ­izations that follow a variety of specific government rules of organ­ization and conduct. ­Until 2020, the election code defined an official po­liti­cal party as an organ­ization that polled more than fifty thousand votes for its gubernatorial candidate in the previous election. In 2018, six parties—­ having met the minimum threshold for votes during the previous two election cycles—­were thus automatically on the ballot without having to qualify in other ways. In 2020, however, the threshold was raised to 130,000, and only four parties—­the Demo­cratic, Republican, Conservative, and Working Families Parties—­met the new standard for automatic standing. Other minor official parties in the past, including the Green, In­de­pen­dent, and Right to Life Parties, failed to meet the new standard. To appear on the ballot, ­these parties now need to collect at least forty-five thousand signatures statewide e­ very year they wish to appear on the ballot.

64 C h a pt e r  3

Since the 2020 law, parties now appear on the ballot based on the votes for governor or president in the previous election. Based on their vote totals in 2020, Demo­crats r­ unning for office anywhere in the state in 2021 and 2022 appear on column or row A of the ballot, the first column or row; Republicans appear on B, Conservatives on C, and Working Families on D. If a party qualifies by petition, its candidates are listed in column or row E. For major offices, it prob­ably does not make much of a difference which row or column a candidate appears on, but during an off-­cycle election year—­say 2021—­a local candidate ­running on a third-­party line would be severely disadvantaged by a position on the ballot that may be less vis­ib­ le. The real influence of third parties comes from a quirk in New York election laws that allows parties to “cross-­endorse” candidates—­something observers call “fusion.” Along with only eight other states, New York law allows two or more parties to run the same candidate, which can be meaningful. In the 1994 gubernatorial election, for example, the Republican candidate George Pataki “lost” to Demo­crat Mario Cuomo by a vote of 2,156,057 to 2,272,903. Pataki however, won an additional 328,605 votes on the Conservative Party line, and 54,040 on a “Tax Cut Now” line, while Cuomo won only 92,001 on the Liberal Party line.1 Thus the Conservative Party claimed to have made the difference in getting Pataki elected, and the party reminded him about that claim frequently. The two most impor­tant and distinctive third parties in New York—­the Conservative Party and the Working Families Party (WFP)—­have nearly permanent ballot status, statewide organ­izations, and rec­ords of success making them ­legal parties and “players” in the eyes of the major parties. The impression that a third party is a player is a favorable one, but it also may put the third party in the proverbial “crosshairs” if friction arises between its leaders and t­hose of the two major parties. This was the case in 2014, when serious tensions arose between Governor Andrew Cuomo and the Working Families Party. Despite listing him on the WFP ballot line in 2010, the WFP flirted with abandoning him during the 2014 convention and endorsing his rival, Fordham University law professor Zephyr Teachout. Cuomo won the endorsement only when New York City Mayor Bill de Blasio—­a critic of the governor—­brokered a deal by which the WFP would abandon Teachout’s candidacy in ­favor of Cuomo. In return, the governor promised to campaign for Senate Demo­crats against Republicans during the general elections. Teachout went ahead and challenged Cuomo in the Demo­cratic primary, earning 34 ­percent of the vote and angering the governor. Following the primary, Governor Cuomo and his allies created a new po­liti­cal party called the ­Women’s Equality Party (WEP), which many observers suggested was designed to siphon votes away from the WFP during the general election. The WFP, however, lost to the Green Party, losing



Pa rt i es , P o ­l i t i ­c a l C h a n g es , a n d E l ec t i o n s

65

Box 3.1  The Mischief of Fusion New York is one of a small handful of states that permits candidates to run on more than one ballot line and be endorsed by multiple po­liti­cal parties in its general elections. This practice is known as cross-­endorsement, or “fusion.” For activists and observers who call for more ideological “transparency, honesty and accountability” on the part of the two major parties, fusion is a boon to democracy in New York State.2 ­There also are reasons to be skeptical about fusion, however, as evidenced by a number of cases of mischief surrounding this practice. In Saratoga, for example, Republicans temporarily changed their party affiliation to Working Families Party (WFP) in 2021, winning the small third party’s primary and defeating WFP candidates who better represented the party’s values. The idea was that voters would cast their November ballots for WFP candidates, not knowing they w ­ ere Republicans. With no alternative, the leaders of the WFP issued a statement prior to the general election asking voters to support Demo­cratic candidates rather than candidates on their own ballot line. Such hostile takeovers of local third parties have been replicated in other parts of the state. As Daniel Soyer demonstrates, the Liberal Party in New York City became more interested in patronage than ideology.3 Similarly, minor parties in many upstate towns and counties largely exist to secure government jobs for their leaders, who contend that their cross-­endorsements provide the margins of victory for major-­party candidates. Minor parties continue to rely on fusion to secure their ballot status by cross-­endorsing established major-­party candidates with greater name recognition than their own members. The corollary is that established candidates use minor-­ party cross-­endorsements to signal ideological commitments that are not truly reflective of their party’s platform. Demo­crats have done the same by endorsing Conservative Party candidates with whom they rarely agree on fiscal or social issues.

its place in column D. The rift worsened in 2018 when the WFP supported Sex in the City actress-­turned-­activist Cynthia Nixon, who lost to Cuomo, nevertheless ending the governor’s onetime alliance with the party. Most observers agree that 2020 changes to the threshold requirement for gaining ballot access from 50,000 to 130,000 votes, which Cuomo supported, w ­ ere largely directed at the WFP.

66 C h a pt e r  3

The contests just discussed speak to patterns of change that make fusion voting in New York enviable to some and anathema to ­others. The WFP on the left and the Conservative Party on the right have styled themselves as the “consciences” of the Demo­cratic and Republican Parties, respectively. Alex Rose, the longtime chair of the labor-­backed Liberal Party, once described its task as “keeping Demo­crats liberal and Republicans honest.”4 The now defunct Liberal Party reached the height of its influence in 1969, when John Lindsay was defeated in the Republican Party primary but nonetheless elected mayor of New York City on the Liberal line. In 1993, the Liberal Party again played a key role in the election of the not very liberal Rudy Giuliani. The r­ unning joke ­after the Giuliani nomination was that the Liberal Party had become neither liberal nor a party. The party was relatively small yet demonstrated that it could tilt an election to its candidate and reward its active members with commissionerships, judgeships, and lesser offices. Former mayor Robert Wagner once implied that the Liberal Party held as many as “five hundred impor­ tant positions” in his administration.5 But as the party became more dependent on patronage and less focused on backing the most liberal candidate, it lost credibility with the voters. The ideological role of the Liberal Party has been assumed by the WFP. The Conservative Party was established in 1962 by disgruntled Republicans who believed the Rockefeller-­led Republican Party had shifted too far to the center. In addition to the patronage and power gained by tipping the election to George Pataki in 1994, the Conservatives remained consequential especially in elections upstate. Before the 2020 rule regarding official party status, third parties emerged and dis­appeared with some frequency. The Green and Right to Life Parties—­propelled by their issue-­driven members—­may still be able to gain ballot access and some leverage with candidates using petitions to get on the ballot. Additionally, candidates w ­ ill continue to form their own cleverly named third parties, such as “Anti-­Tax,” “­Women’s Equality,” “The Rent’s Too Damn High,” and “Socialist L ­ abor,” to lure voters. Ultimately, what motivates the organ­ization of most minor parties is their ability to magnify their electoral impact by cross-­endorsement strategies. The widespread perception that such third-­party votes are impor­tant sustains them in two ways. First, it leads major-­party candidates—­particularly ­those in close races—to seek cross-­endorsements. In state legislative campaigns since 2010. almost three-­quarters of all Demo­cratic and Republican candidates for the Assembly and Senate also have run on the WFP, Conservative, or In­de­pen­dence lines. Second, third parties frequently reap the rewards of patronage, thus giving some of their members a personal incentive to remain active.



Pa rt i es , P o ­l i t i ­c a l C h a n g es , a n d E l ec t i o n s

67

Patterns of Party Competition Although third parties are more impor­tant in New York than in most other states, clashes within and between the Republican and Demo­cratic Parties remain central. ­Until recently, New York has enjoyed one of the more competitive party systems in the country. For sixty years, statewide elections ­were seldom landslides, and both parties ­were able to elect at least one statewide official in e­ very election since World War II. Statewide victories by Demo­crats in races since 2006, coupled with overwhelming margins for Demo­crats in races for US Senate and the presidency, do not bode well for New York Republicans. Despite the Demo­crats’ statewide dominance, many of the state’s towns and counties remain firmly Republican, such that most areas of the state are still characterized by one-­party rule. This means that the staggering rates of incumbency, which have long defined politics and elections in New York, ­will remain. Region has long been a defining ­factor in New York politics. “For much of the twentieth ­century,” as a leading student of New York elections once wrote, “the bases of po­liti­cal parties in New York have been ­simple and clear. Republicans dominated upstate and the suburban areas around New York City. Demo­ crats dominated New York City and a few upstate urban areas. The division reflected the long-­standing hostility of upstate to New York City. New York was regarded as ‘dif­fer­ent.’ ”6 In the 1994 gubernatorial campaign—to cite an extreme but illustrative case—­winning Republican candidate George Pataki received 82 ­percent of the votes cast in rural Hamilton County, as opposed to his per­for­mance in New York County, where he won only 18 ­percent of votes. In contrast, Demo­crat Mario Cuomo carried four of New York City’s five boroughs and won only one other county (Albany) in the entire state. Cumulatively, Cuomo won 71 ­percent of the vote in New York City and 38 ­percent of the vote in upstate New York. In 2010, Republican Carl Paladino—­running against Andrew Cuomo—­received less than 10 ­percent of the vote in New York County and still won Hamilton County with 54 ­percent of votes. Paladino was defeated throughout New York City, including Staten Island—­a Republican stronghold—­ where Mario Cuomo came in second to Pataki in 1994. Although personalities are impor­tant and the electorate is polarized, the number of ­people refusing to register with any party has grown. The growth in the proportion of in­de­pen­dents and Demo­crats has come almost entirely at the expense of the Republicans. Jeffrey Stonecash and Amy Widestrom state, “The pattern for upstate counties is one of a continual decline in Republican enrollment. If this continues, and older registrants who are more Republican leave the state or die, Republican enrollment w ­ ill be much lower in the f­ uture.”7

68 C h a pt e r  3

And indeed it is. A surge of new voter registrations in 2018 occurred largely among Demo­crats, who ended the year with more than half of all enrolled voters. With just 23 ­percent of voters registering as Republicans, they barely surpassed individuals not registering with any party, at 21 ­percent. The remaining 6 ­percent of new voter registration was scattered among Conservatives and other minor parties. The biggest gains for Demo­crats in recent years appear in areas other than New York City. As frequently happens during periods of electoral realignment, the trend began at the national level. Following the 2016 election of President Donald Trump, Republicans witnessed losses in the US House of Representatives even in traditionally safe districts in the Hudson Valley, along with a number of State Senate districts on Long Island. During the 2018 midterm elections, Demo­crats gained seats in the House of Representatives and won eight State Senate seats. The Demo­crats gained three more seats in 2020, securing a two-­ thirds majority, and changed the dynamics of the state’s redistricting pro­cess, in which the Republicans can no longer draw the district lines without interference by outside forces such as courts of law. New York Republicans retain some abiding strength in the state’s unique regional splits. Although upstate-­downstate differences are impor­tant in other states, the po­liti­cal shadow cast by the New York metropolitan area is unique. In Illinois, the Chicago metropolitan area makes up more than 60 ­percent of the state’s population; Bostonians similarly dominate in Mas­sa­chu­setts. Yet “when each metro region’s percentage of its state’s population is compared with the area’s share of the winners in the contests for governor and senator, New York turns out to have the largest regional imbalance.”8 Upstate New York is outnumbered by more than a million votes, and it is highly fragmented. It has, for example, four of the fifty largest US tele­vi­sion markets, in Albany, Buffalo, Rochester, and Syracuse, yet the four areas combined total less than half the viewers of New York City. For the statewide candidate seeking media exposure, upstate is “a series of airports” encountered in an all-­day “fly-­ through” that ­will yield less than half the media exposure of a single appearance in New York City. A local politician who makes the news in the New York City area “is regularly beamed into two-­thirds of New York’s ­house­holds. His counterpart in Buffalo (the state’s second largest tele­vi­sion market) has his local accomplishments broadcast to only 10  ­percent of the state’s homes.”9 However big a fish the upstate politician may be in the home pond, that politician is comparatively a minnow swimming among ­whales when it comes to media exposure. Small won­der that the governors, attorneys general, and comptrollers in this c­ entury have had their homes in the New York City me-



Pa rt i es , P o ­l i t i ­c a l C h a n g es , a n d E l ec t i o n s

69

dia market. Governor Hochul, from Buffalo, became the exception to this rule in 2021. Prior to 2018, a divided legislature provided a check on partisan politics and policy. The Republican Conference that for de­cades controlled the State Senate never drew more than eleven members of its majority (or working majority) from downstate. Demo­crats gained control of the Assembly only when they regularly began to win upstate seats (particularly in the larger cities), and their successes in the 2018 Senate elections ­were divided between New York City and its suburbs. With the exception of State Senator Michelle Hinchey in the Hudson Valley, the Demo­crats’ seven upstate senators are from districts in and around Albany, Buffalo, Rochester, and Syracuse. Democratic candidates for statewide office who cannot do well in t­ hese upstate cities can lose. New York City remains a Demo­cratic stronghold, through Staten Island is competitive, with the Republicans often having an edge. Before significant demographic shifts in the 1990s diversified districts with ethnic groups inclined to be more Demo­cratic, the voting patterns of residents in Bay Ridge in Brooklyn, parts of the Northeast Bronx, and many of the white neighborhoods of Queens mirrored ­those of the state’s rural areas. Nevertheless, hostility to New York City remains a staple of the state’s politics, even in urban upstate areas that might sympathize with the city’s policy concerns. It remains to be seen how the pandemic and growing antipathy t­ oward cities in US po­liti­cal culture w ­ ill affect this relationship, but it seems clear that New York ­will continue to experience many of the upstate-­downstate tensions that have long characterized statewide and regional elections. More than in most other states, regionalism has tended to distort the po­liti­cal demography of New York. Many working-­class voters upstate, who might normally be expected to vote Demo­cratic (and who still often do in national elections), vote Republican for state offices out of hostility to New York City. While the rest of the Northeast has moved rather decisively into the Demo­cratic column and New York is moving in that direction, upstate New York is far more Republican than states with similar demographic profiles. Even its upstate cities are more Republican than cites of equivalent size elsewhere in the country. More affluent white city voters—­often drawn to Republicans—­vote Demo­ cratic both out of a feeling that Republicans do not understand their special urban prob­lems and out of a strong antipathy to what they see as the intolerant stands of national Republicans on social issues—­including reproductive rights for ­women; the status of racial justice movements such as Black Lives ­Matter; and the rights of immigrants, documented and undocumented—­that gathered par­tic­ul­ar force during the presidency of Donald Trump.

70 C h a pt e r  3

Driven and reinforced by national po­liti­cal currents, primary elections increasingly have displayed the growing fragmentation of both state parties. The confluence of more extreme events in Washington and polarizing primary contests across the state—­particularly in downstate Demo­cratic legislative races—­has led to pitched ­battles between party insiders who tend to represent more moderate policy positions on the economy and social issues, and younger insurgent members with more progressive views. Other insurgents in the Demo­cratic Party, often with ties to national organ­izations such as the Progressive Demo­crats, the Demo­cratic Socialists of Amer­i­ca, and vari­ous remnants of Bernie Sanders’s 2016 and 2020 campaigns for president, w ­ ere energized by the surprise 2018 victory of Representative Alexandria Ocasio-­Cortez, whose election continues to resonate throughout the state. Although the state’s Republicans have remained better unified, the gap between its traditionally more moderate wing and increasingly more militant followers of Donald Trump has widened. To the extent that party discipline in the legislature continues to exist, it does so despite rather than ­because of the parties’ inability to control nominations in primaries. With few exceptions, members of the legislature in both parties, what­ever they may argue on the campaign trail, still prefer to hammer out their policy differences within their respective party conferences rather than in public forums.

Party Structures and the Rules of the Game No organ­ization better typifies the oft-­maligned urban po­liti­cal machine than New York City’s Tammany Hall. At its peak, Tammany seldom lost control of city hall and was frequently able to elect governors as well. In the city, its patronage powers extended to virtually all municipal jobs and contracts. If you wanted to work for the city, you went through Tammany. If you wanted to run for po­liti­cal office, you apprenticed in the organ­ization, turning out the vote, organ­izing the community, and delivering ser­vices. ­Those who supported the organ­ization with their work, votes, or money received their just rewards. ­Others did not. Critics of machine politics focus on the ethics of a po­liti­cal system based on f­avor trading. Through patronage, key appointments and decisions ­were made on the basis of connections and kickbacks rather than merit. Votes w ­ ere cast on the basis of quasi-­feudal loyalties to neighborhood leaders rather than rational appraisals of the issues and candidates. The machine, however, also served impor­tant positive functions. Its capacity for bringing politics into neighborhoods channeled upward mobility to ethnic groups excluded from more conventional pathways to success, integrated immigrants into the nuances of a foreign culture, and or­ga­nized the dynamically changing po­liti­cal



Pa rt i es , P o ­l i t i ­c a l C h a n g es , a n d E l ec t i o n s

71

and economic life of the emerging industrial society, helping make democracy work. And as one of its latent functions, it made the cities governable.10 However one evaluates the roles of organ­izations such as Tammany Hall, their influence pervaded New York State politics from the late nineteenth ­century and well into the twentieth. Aside from Tammany—­which dominated the city’s Demo­cratic Party for more than a c­ entury—­the Albany County machine of “­Uncle Dan” O’Connell and Erastus Corning effectively ruled that area from the 1920s u ­ ntil quite recent times.11 Buffalo’s Crotty organ­ization similarly dominated Erie County politics well into the 1970s. Cohesive Republican organ­izations dominated the politics of both Syracuse and Rochester at the turn of c­ entury and ­were a major force in such upstate cities as Utica and Schenectady as recently as the 1960s.12 Remnants of the patronage-­driven Republican organ­izations in Nassau and Suffolk Counties still exist at the local level. ­These declining party organ­izations continue to control nominations. Periodic reform movements occasionally succeeded in displacing the machines, and in the early twentieth c­ entury the reformers enacted several state laws designed to curb abuses of power and weaken the party organ­izations. The most impor­tant of ­these reforms w ­ ere ­those tightening election rules, establishing primary elections, and creating the civil ser­vice system. None of ­these changes in the rules of the game w ­ ere immediately fatal to the machines. Most students of US po­liti­cal history see the rise of the New Deal welfare state as far more corrosive of the party organ­ization’s main bases of power. It seems likely that curbs on immigration combined with other demographic changes, such as increased access to education, played an impor­tant role in the eventual demise of Tammany Hall and its counter­parts. With or without civil ser­vice reforms, growing affluence made municipal jobs less attractive; the welfare state displaced the precinct worker as the friend of the needy; and a better-­ educated electorate preferred to make its own decisions about how to vote. Po­liti­cal machines and the reform laws aimed at the machines continue to leave impor­tant imprints on New York politics. The basic structure of the parties as codified in the state election laws is essentially that of the old machines. In its most elaborate form, Tammany Hall in the nineteenth ­century constituted, as Daniel Patrick Moynihan described it, a massive party bureaucracy, which rivaled the medieval Catholic Church in the proportion of the citizenry involved. The county committees of the five boroughs came to number more than 32,000 persons. It became necessary to hire Madison Square Garden for their meetings—­and to hope that not more than half the number would show up as t­ here w ­ ouldn’t be room. . . .

72 C h a pt e r  3

[It was] a po­liti­cal bureaucracy in which rights appertained not to individuals but to the positions they occupied. “Have you seen your block captain?” It did not ­matter that your captain was an idiot or a drunk or a devout churchgoer who would be alarmed by the request at hand; the block captain had to be seen first. Then the election district captain. Then the district leader. The hierarchy had to be recognized.13 This essential structure is still embodied in the election code, which allows each of the state’s approximately thirteen thousand election districts to select two members of each party in the primary election. Typically, a candidate who qualifies by getting signatures on a party petition ­will become the local representative of his party. If more than two candidates qualify, they ­will appear on the primary election ballots of their respective parties. The final fate of the machine in New York City was sealed in the 1960s and 1970s when reform Demo­crats won enough of t­hese very local races to take control of the party machinery from Tammany Hall. A similar trend has been underway in numerous election districts following a series of high-­profile corruption scandals involving party leaders who si­mul­ta­neously held seats in the state legislature, especially in the early 2000s. A number of reform groups have sprouted in the wake of the insurgencies to wrest control of party nominations out of the hands of “regulars” who once dominated po­liti­cal clubs, particularly in New York City. The individual precinct or election district (ED) is the foundation of law and practice for the modern party organ­ization, as it was for the machine. Usually comprising fewer than a thousand registered voters, each ED elects two party leaders (one of each gender) for each party. Known in most areas as county committeemen and ­women, ­these election district leaders are the building blocks of the party organ­izations. Above county committee members are the elected party officials known as ward leaders, district leaders, and town chairs. Typically, t­ hese party officials elect a county executive committee and a county leader. The modern county leaders are the lineal descendant of the old machine boss. County leaders’ power—­like that of the boss—­derives from their ability to maintain the support of ­those lower in the party hierarchy. The term “hierarchy” seldom describes the a­ ctual relationships between con­ temporary leaders and followers, with real­ity more aptly described as “porous,” “ad hoc,” and “permeable.”14 Certainly the era of boss rule is long gone. As one former Demo­cratic state chair put it, “It’s more shifting co­ali­tions, rather than a center, command and control type of model. As chair, I remember walking around and saying ‘Where’s the backroom? Where’s the room where I get to go and smoke cigars and make all the decisions, ­because I ­haven’t found the door.’ ”15



Pa rt i es , P o ­l i t i ­c a l C h a n g es , a n d E l ec t i o n s

73

Still, it would be wrong to underestimate the very real influence that networks of party leaders and experienced volunteers have in choosing candidates. Many potential challengers run inept campaigns and lack the resources to do better. “Finding individuals with the necessary experience and ability to carry out the demanding tasks of a campaign is difficult to do outside the network of the party.”16

Campaigns and Elections New York, like other states, has moved increasingly ­toward “candidate-­centered campaigns” that rely less on formal party organ­izations than on networks of activists. At the same time, paradoxically, the state’s major-­party organ­izations—­ the Republican and Demo­cratic state committees, and the Assembly and Senate campaign committees—­are better financed and more professional that at any time in modern history. Stronger in their ability to channel resources into campaigns, they have been unable to establish consistent control over the pro­cess of recruitment. Nor have they been able to coordinate resources from one level of government to another, or between and among the two h ­ ouses of the legislature and the offices of governor, attorney general, and comptroller. One of the keys to the effectiveness of Tammany was its vertical and horizontal integration. Once the organ­ization de­cided its policy, it was put it into effect. The hallmark of the modern party system is fragmentation. From 1978 to 2018, divided government—­a Republican Senate, a Demo­cratic Assembly, and a governor from ­either party—­made it appear as if partisanship was the cause of deadlock. In fact, it was only a symptom of deeper splits in both parties that cut across institutional lines. And while the 2019 legislative session in Albany produced a plethora of bills passed by Demo­cratic majorities in both ­houses, which ­were signed into law by Demo­cratic governor Andrew Cuomo, a still significant number of controversial measures—­such as how to legalize recreational marijuana and tax the wealthy—­continue to divide factions of the Demo­cratic Party as much as t­ hese issues divide Republicans and Demo­crats. New York State election law indicates that in addition to county committee members and district or county leaders, the parties in each county elect representatives to a state committee. The major parties’ state committeemen and committeewomen constitute the governing bodies of the parties. They set party rules and endorse candidates for statewide office. At the Republican state convention, the party has chosen its nominees for statewide office with considerable regularity. In contrast, for Demo­crats an endorsement by the party convention has been more a liability than an asset. U ­ nder the law, any

74 C h a pt e r  3

candidate supported by a majority of the state convention automatically appears on the primary ballot. Candidates who lose yet garner at least 25 ­percent of the vote appear on the ballot without gathering signatures on petitions, even though they are not the endorsed candidates. Both the Republican and Demo­cratic Parties regularly face a tension between the preferences of their core primary voters and the candidate attributes most likely to win elections in November. ­Because only dedicated partisans turn out for primary elections in New York, they are more polarized ideologically than the electorate as a w ­ hole. Primary voters are drawn from a narrow cross section of the state electorate. Indeed, the combination of primary elections and requiring voters to register in advance made the machine’s job easier by reducing the number of voters needed win. In general elections in the 1880s, participation rates sometimes exceeded 90  ­percent statewide, however ­those rates dropped precipitously as the twentieth c­ entury began. They dropped below 60 ­percent prior to the introduction of ­women’s suffrage in 1920. When voter totals in the 2018 general election for governor reached a “whopping” 49 ­percent, po­liti­cal observers around the state called it an unusually high turnout election, which speaks to declining participation rates in New York.

Who Votes and Who D ­ oesn’t The United States is among the countries with the lowest rates of voter participation in the world. And New York State is increasingly distinguishing itself as a state in which voter participation rates are unusually low, even by US standards. As far back as the 1920s and 1930s, New York ranked in the bottom third among northern states. The Voting Rights Act of 1965 empowered the federal government to enforce voting rights in areas where ­people previously ­were disenfranchised. Aimed essentially at southern states whose segregationist policies routinely prevented Blacks from voting, it targeted counties with histories of nonvoting that suggested systematic bias. New York was among the few northern states affected. In the 2016 presidential election, the state ranked forty-­ first in overall turnout, an improvement over the state’s forty-­eighth place finish in 2004. The 2018 race for governor and other offices set a rec­ord for the highest turnout in modern state history, but only seven states had rates lower than New York’s 45 ­percent. And despite the highly contested nature of the 2020 presidential race, New York ranked thirty-­ninth in turnout. Even more discouraging, turnout in primaries—­often the only elections that r­ eally count—is even lower, especially at the local level. In 2021, for example, Mayor Kathy Sheehan of Albany—­a city of nearly one hundred thousand ­people—­won her Demo­cratic primary election with fewer than four thousand votes. What­ever it is that



Pa rt i es , P o ­l i t i ­c a l C h a n g es , a n d E l ec t i o n s

75

depresses electoral participation in the United States operates with par­tic­u­lar force in New York. More impor­tant, given that many Senate and Assembly districts are safe seats and noncompetitive in character, t­ here are few states in which turnout in primary elections is lower. Some of ­these figures may be deceptive. ­Because voter turnout often is mea­sured as a percentage of the state’s adult-­age population, states like New York that have high proportions of noncitizens may actually have more po­liti­ cally robust participation rates than ­these figures indicate.17 It may be that Latinos vote at a slightly higher rate than the national average ­because many of New York’s Latinos are already citizens of Puerto Rican heritage. Conversely, many of New York’s Black voters are citizens of Haiti, Jamaica, Ghana, and other countries and cannot register to vote. Even among ­those immigrants who have become citizens, Berg suggests that some groups are less likely to vote b­ ecause “New York City is not viewed as their permanent or long-­term home. Some immigrants plan on returning to their place of origin ­after having accumulated some wealth in the United States.”18 It may also be that, as the author argues, “lower voter turnout rates are in part due to a strong emphasis on work over other activities as well as an aversion to politics resulting from living in authoritarian po­liti­cal systems.”19 ­There is considerable variance in who votes and why. Among all ethnic groups, poor and poorly educated ­people vote at dramatically lower rates than their wealthier and better-­educated compatriots. And up to a point, the older you are the more likely you are to vote. (It remains to be seen ­whether national youth movements to address police brutality, advance racial justice, and reduce gun vio­lence in the wake of the Trump presidency ­will affect that quotient in ­future elections.) ­These differences appear to be the combined product of three interrelated variables. First, t­ here are questions of motivation, mobilization, and efficacy. Poorly educated ­people lack the information to make politics salient; generally, the poor are likely to lack a sense of po­liti­cal efficacy or a feeling that their votes count to participate in a pro­cess that seems remote from their daily lives. Second, t­here are the “costs” of voting, which can be higher for some ­people than ­others. Using a rational choice model, some scholars suggest that if the perceived “benefits” of voting seem to outweigh the “costs,” ­people vote, and if the costs outweigh the benefits, they stay home. Scholars who emphasize the “cost” side of the equation argue that in the United States, deliberately constructed impediments to voting—­such as difficult registration requirements, incon­ve­nient times and places of election, and aggressive efforts to intimidate and threaten potential voters—­result in ­people not voting. Fi­nally, it is impor­tant to look at the “benefit” side of the equation: if the po­liti­cal system is failing to offer meaningful choices to marginal voters, why should they be expected to

76 C h a pt e r  3

vote? Stressing the failure of parties and candidates to reach out to the young and poor, the lack of meaningful competition in most areas, and the failure of politicians to address the real concerns of nonvoters, some scholars attribute nonvoting largely to the failure of groups such as the Demo­cratic Party and the ­union movement effectively to reach out to their natu­ral constituencies. Increasingly, students of voting are moving ­toward a theory that stresses the complementary interaction of ­these three ­factors.20 ­These f­ actors appear to reinforce one another, increasingly driving lower-­status citizens out of the voting pool. Less-­educated ­people are more easily intimidated and less likely to know how to register to vote. B ­ ecause the young and the poor are less involved in communities that are po­liti­cally active, t­ here are fewer efforts to bolster participation. Further, candidates have ­little incentive to seek the support of such citizens or make it easier for them to vote. The boards of elections often appointed by t­ hese same officials seldom see their role as that of facilitating citizen participation.21 Campaigns are pitched t­ oward registered voters, and ­those who run campaigns are leery of reforms that might dramatically alter the rules of the game that have worked for them in the past. Nonvoters correctly perceive that politicians pay ­little heed to their communities and have still less incentive to become involved in the pro­cess. A major consequence of this dynamic is the growing disenfranchisement of the poor. It is not surprising that augmenting voter registration has failed to rank as a high priority for many of the state’s elected officials. Incumbents have been reluctant to tamper with the method of election that got them where they are. New voters are wild cards potentially supporting primary challengers or even voting the “wrong” way—­against the incumbent—in the general election. The pandemic and ensuing controversies over alleged voting fraud have changed and intensified the debate, adding a partisan dimension to what may seem to be largely technical issues. Pandemic-­related laws expanding voting hours, allowing greater use of absentee ballots, and permitting such innovations as drive-by voting are widely believed to have increased the 2020 turnout rates, especially among Demo­cratic voters. Many state legislatures in Republican states have responded by passing laws repealing expanded access and subjecting nonpartisan administrators to legislative review. While New York has resisted ­these trends, it has not removed many of the barriers to participation that keep turnout low.

Districting, Reapportionment, and Voting Few ­things more threaten incumbent politicians than changes in the rules of the game. New laws regarding who can vote, how candidates are chosen, and



Pa rt i es , P o ­l i t i ­c a l C h a n g es , a n d E l ec t i o n s

77

what rules govern campaign finance usually come only a­ fter long periods of public agitation or in response to crises such as the pandemic. Election laws are drafted and enforced at a point where demo­cratic theory meets practical politics. If “one person, one vote” is the ideal, the rules governing which persons, how, and when are po­liti­cal artifacts. They are, in the eyes of most elected officials, tools of the trade. When New York required each county to open early voting sites in 2020, for example, the Republican board in Rensselaer County sited four polling places—­none of which was in downtown Troy, the county’s largest community and home to most of the county’s minorities and Demo­crats. It took a court order (in response to a suit brought by the state attorney, a Demo­crat) to open a downtown site in 2021. The po­liti­cal nature of election law is revealed graphically when legislative district lines are redrawn ­every ten years following the census. The creation of the In­de­pen­dent Redistricting Commission in New York in 2014 may represent improvement, though it is not clear how significant redistricting w ­ ill prove in the long run. B ­ ecause the commission is appointed by members of the state legislature, it is bipartisan rather than nonpartisan, not in the strictest sense “in­de­pen­dent,” and not immune to gerrymandering. What does seem likely is that t­ here ­will be fewer districts in both h ­ ouses than in previous de­ cades when the majority parties in both ­houses essentially drew their own lines—­a change prompted in 2022 by the judicial branch, for example. ­Every ten years following the national census, the governor, legislature, and redistricting commission must agree on a plan to redraw the lines of legislative districts to reflect changes in population. Even though the state constitution requires periodic reapportionments, it does not mandate districts of equal size. Indeed the constitution was engineered by the upstate Republicans, who controlled the state convention to ensure that New York City would never be able to elect a majority in ­either ­house of the legislature. The decisive period in New York’s legislative elections began with a 1962 Tennessee case that was de­cided by the Supreme Court of the United States known as Baker v. Carr, 369 U.S. 186 (1962). The question before the court in this landmark case seemed ­simple: although the constitution of the state of Tennessee—­like that of the federal government, New York, and most other states—­required the state to reapportion its legislative districts ­every ten years, Tennessee had not done so for more than sixty years. As a result, Assembly districts in Tennessee ranged in population from 3,454 to 79,031. Baker—­a resident of one of the larger districts—­charged that such disparities diluted the voting power of city residents and thereby denied them the “equal protection of the laws” guaranteed by the F ­ ourteenth Amendment. Pre­ce­dent was on the side of the state. In the 1946 case of Colegrove v. Green, the Supreme Court refused to involve itself in

78 C h a pt e r  3

a similar case on the ground that it was a po­liti­cal question. “Courts,” the majority argued in Colegrove, “­ought not to enter this po­liti­cal thicket. The remedy for unfairness in districting is to secure state legislatures that w ­ ill apportion properly, or to invoke the substantial powers of Congress.”22 In Baker v. Carr, the Court entered this po­liti­cal thicket. By ruling the Tennessee case justiciable and ­later enunciating the standard of “one man, one vote,” the Court soon revolutionized legislative districting throughout the United States. By grounding its opinion in the federal equal protection clause rather than the Tennessee Constitution, the Court opened the door to challenges of the legislatures of almost ­every state. Baker was underrepresented ­because the Tennessee legislature had failed to keep up with population changes in drawing district lines. But what about a resident of New York City who was similarly “underrepresented” ­because the state constitution mandated it? The Court’s answer was not long in coming. Writing for the majority in 1964, Chief Justice Warren held that “the Equal Protection Clause requires that the seats in both ­houses of a bicameral state legislature must be apportioned on a population basis.”23 The state’s original efforts to meet the one-­person, one-­vote requirement failed to meet judicial scrutiny, and the 1966 legislative elections w ­ ere conducted ­under a court-­ordered reapportionment plan. By 1968, it was clear that the courts would tolerate virtually no deviations from a standard of strict population equality. The provisions of the state constitution that prohibit dividing counties in drawing Senate districts, and more generally prohibited the division of towns and city blocks, ­were rendered inoperative. Joseph Zimmerman and o ­ thers argue that ignoring t­ hese provisions in ­favor of strict population equality while eliminating “rural over repre­sen­ta­tion and urban ­under repre­sen­ta­tion . . . ​made gerrymandering easier. . . . ​In other words, equally populated districts may have unfair district lines.”24 The term “gerrymander” originated in a journalist’s description of a bizarrely ­shaped district designed in 1812 in Mas­sa­chu­setts by Governor Eldridge Gerry with the obvious intent of giving his party an advantage in the upcoming elections. In practice, the term is not easily defined. Oddly s­ haped districts most certainly predate the Supreme Court’s reapportionment rulings, sometimes for nonpartisan reasons. Prior to Baker v. Carr, a legislature bent on gerrymandering not only could draw funny lines but could make some districts artificially small or large as well. And in fact the legislature did so. But even with districts of equal size, one person’s gerrymander is often another’s equitable apportionment scheme. Former assemblyman Peter Berle argues, for example, that “the urban interests of persons in a city are not represented if legislative districts are drawn in pie ­shaped sections with the center of the city at the center of the pie. This condition persisted in Syracuse, New York u ­ nder a number of apportionment



Pa rt i es , P o ­l i t i ­c a l C h a n g es , a n d E l ec t i o n s

79

plans. In such a situation, the core city area is divided into a ­g reat many small pieces, each of which is lumped with a much larger population of suburban voters. . . . ​The suburban interests which predominate in number w ­ ill elect representatives who . . . ​may be in direct conflict with their city dwelling neighbors.”25 Berle’s argument makes sense only if one accepts the premise that ­there is such a ­thing as “urban interests.” Are the differences between ­people residing in Syracuse so significantly dif­fer­ent from t­ hose of p­ eople two miles away in Clay or Manlius that they deserve legislators of their own? Would a map that put suburban voters in a ring around the city be any less a gerrymander than one that mixed constituencies? This kind of question has become judicially significant when the issue is race and ethnicity. It was successfully argued in court that Syracuse may or may not be a community, but Blacks, Latinos, and Asians are communities. Beginning in the 1970s, the legislature—­the Assembly in particular—­reapportioned districts to create majority-­minority districts in which minority groups w ­ ere in a clear enough majority to elect more Blacks and Latinos. Black and Latino members of the legislature ­were able to create a number of ­these districts a­ fter the Justice Department became involved in 1974. In response to a suit initiated by the National Association for the Advancement of Colored ­People (NAACP) and the ­Legal Defense Fund, the Justice Department—­acting ­under the Voting Rights Act (1965)—­had voided the original 1974 reapportionment and called for a new set of district lines. Although the new lines resulted in an immediate increase of only one new minority member, taking the total from twelve to thirteen, the hidden hand of the Justice Department was a player in e­ very subsequent reapportionment deal. Although the 1982 reapportionment plan helped push the number of majority-­minority districts to twenty, pressure from the Justice Department reached a peak in the 1990s. A Republican administration in Washington saw that by linking itself with minority aspirations for greater legislative repre­sen­ta­ tion it also could help further its own legislative agenda. ­Because minorities—­ Blacks in particular—­ tend to vote Demo­ cratic, any redistricting plan that concentrates minorities also concentrates Demo­crats. By conceding one seat to the Demo­crats by an overwhelming margin, the Republicans could remove enough Demo­crats from surrounding areas to virtually guarantee two, three, or even four surrounding seats for their own candidates. The districts created through this minority-­Republican alliance served to increase the numbers of Black and Latino legislators and Republican seats. One of the most misshapen districts created out of this alliance was a Latino district winding across four boroughs of New York City in a shape vaguely reminiscent of the cartoon character “Bullwinkle.” Challenges to t­ hese districts eventually caused the Supreme

80 C h a pt e r  3

Court to abandon its traditional reluctance to rule on the shape as opposed to the size of legislative districts, at least in cases in which race could be shown to be “the predominant ­factor” in producing district lines. “Shape,” the Court held, “is relevant not ­because bizarreness is a necessary ele­ment of the constitutional wrong or threshold requirement of proof, but ­because it may be persuasive circumstantial evidence that race for its own sake, and not other districting princi­ ples, was the legislature’s dominant and controlling rationale in drawing its district lines.”26 Eventually a challenge to New York’s “Bullwinkle district” reached the courts, and in 1997 it, too, was ruled unconstitutional: “all districting princi­ples,” a unan­im ­ ous three-­judge panel ruled, “must be applied in a race-­ 27 neutral fashion.”

Protecting Incumbents The Supreme Court made clear that the Bullwinkle district’s bizarre shape was only one ­factor in making it constitutionally suspect. The legislative history of the redistricting pro­cess in 1992 “demonstrated that all traditional redistricting criterion ­were subordinated to race.”28 Although the Diaz v. Silver case was ­limited to the twelfth congressional district, the Court’s reasoning called into serious question more than one district in the state legislature, and ­there are currently no State Senate or Assembly districts quite as bizarre in shape as the congressional districts thrown out by the courts in 1997. The Supreme Court’s growing willingness to challenge majority-­minority districts stands in rather striking contrast to the Court’s general unwillingness to look at other kinds of gerrymanders. ­After size and ethnicity, it seems clear that, “despite its con­spic­uo ­ us absence from any direct discussion, incumbency appears to have been the unacknowledged third-­most-­significant ­factor used when redistricting.”29 The New York Constitution was amended in 1946 to incorporate compactness and re­spect for po­liti­cal bound­aries as ­factors that must be considered in drawing state legislative district lines. Despite ­these guidelines, compactness and bound­aries have never been clearly defined, and the legislature often has created odd-­shaped districts that are anything but compact. While some of ­these districts attempt to follow traditional community bound­aries, and ­others implicitly protect minority groups not covered ­under the Voting Rights Act (1965), the two kinds of gerrymanders most common in New York are t­hose designed to protect party advantages and incumbents in the state legislature. Since 1982, t­ hese two modes largely coincided and to some extent ­will continue what­ever the In­de­pen­dent Redistricting Commission and the legislature decide to do. This occurs ­because a natu­ral gerrymander exists in New York State, with Demo­crats heavi­ly concentrated in New York City and



Pa rt i es , P o ­l i t i ­c a l C h a n g es , a n d E l ec t i o n s

81

Republicans in rural areas upstate. Making a Demo­cratic district in New York City competitive, for example, would require combining parts of the district with a Republican area miles away.

The Evolving Party System For most of its recent history, the party system in New York has been relatively competitive statewide and extremely uncompetitive locally. Candidates for such statewide offices as governor and attorney general traditionally had to be aware of the opposition party’s nominee and the roles played by third parties. In contrast. during legislative elections it has been the party’s primary elections that m ­ atter most. In 2020, for example, of the 213 members of the state legislature, only 10 w ­ ere defeated, 6 of them in party primaries and 4 in the November general election. Once members of the legislature have won their first primary election, it is only ­under exceptional conditions that their seats w ­ ill be significantly contested again. Recent elections suggest that the same dynamic has been occurring among statewide offices as well. When Governor Al Smith ended the Republican Party’s dominance in statewide elections, ­there was considerable rotation in office, with at least one statewide official from each party for more than seventy years. Since 2002, however, when Republican governor George Pataki won reelection, not a single Republican has won a statewide election for any office. Po­liti­cal scientists have used such terms as “partisan realignment” and “critical elections” to describe periods in which the dominant party displaces a new constellation of po­liti­cal forces (see t­ able 3.1). Nationally, a critical election typically is followed by a long period in which the new co­ali­tion dominates both Congress and the presidency—­not necessarily winning e­ very election, but generally able to win in all but unusual circumstances or ­unless facing very popu­lar candidates. The national election of 1932 was a classic realigning election, sweeping Franklin D. Roo­se­velt into the White House as the first Demo­cratic president in twelve years and displacing Republican majorities with Demo­crats in both the House and Senate. Despite the elections of Republicans Dwight Eisenhower in 1952 and 1956 and Richard Nixon in 1968, the so-­called New Deal co­ali­tion forged by Roo­se­velt and the Demo­crats in the 1930s dominated the system for de­cades. Roo­se­velt’s 1932 election solidified what has become known as the New Deal realignment, which dominated national voting patterns for the next three de­cades. It had its origins in New York in the 1920s. A ­ fter winning the governorship in 1918, losing in 1920, and winning again in 1922, Al Smith’s margins

82 C h a pt e r  3

­Table 3.1  Seats and votes in the New York State legislature: Demo­cratic percentage of Assembly and Senate seats won, and statewide Demo­cratic percentage of total two-­party vote, 1960–2020 STATE ASSEMBLY

PARTY DIVISION

STATE SENATE

­P ERCENT DEMO­C RATIC

PARTY DIVISION

­P ERCENT DEMO­C RATIC

DEM

REP

SEATS WON

POPU­L AR VOTE

DEM

REP

SEATS WON

POPU­L AR VOTE

1960

65

84

43.6

50.7

25

33

43.1

50.3

1962

65

84

43.6

48.9

25

33

43.1

48.1

1964

90

75

54.5

57.6

32

25

56.1

57.7

1966

80

70

53.3

51.0

26

31

45.6

49.5

1968

72

78

48.0

49.5

24

33

42.1

45.8

1970

71

79

47.3

49.5

24

33

42.1

48.2

1972

67

83

44.6

49.6

23

37

38.3

47.5

1974

88

62

58.7

55.9

26

34

43.3

53.5

1976

90

60

60.0

56.2

25

35

41.6

50.6

1978

86

64

57.3

52.5

25

35

41.6

48.2

1980

86

64

57.3

51.6

24

35

40.7

46.8

1982

97

52

65.1

58.4

26

35

42.6

46.5

1984

94

55

63.1

52.7

26

35

42.6

44.8

1986

95

56

62.9

54.5

26

35

42.6

45.0

1988

92

58

61.3

54.0

27

34

44.3

43.8

1990

94

56

62.6

52.8

26

35

42.6

44.2

1992

101

49

67.3

55.3

26

35

42.6

49.6

1994

94

56

62.6

51.5

25

36

41.1

40.2

1996

96

54

64.0

58.7

27

34

44.3

52.1

1998

99

51

66.0

57.6

25

36

40.1

49.1

2000

99

57

66.0

59.2

25

36

41.0

47.2

2002

102

48

68.0

57.2

25

37

40.1

40.5

2004

105

45

70.0

62.7

26

36

41.9

48.2

2006

108

42

72.0

64.3

29

33

46.8

56.6

2008

109

41

72.6

70.6

32

30

51.6

57.0

2010

99

50

66.4

63.0

30

32

48.4

53.2

2012

105

44

70.5

68.2

33

30

52.4

59.2

2014

106

44

70.7

63.8

31

32

49.2

50.5

2016

106

43

71.1

66.9

32

31

50.8

58.5

2018

106

43

71.1

68.5

40

23

63.5

63.1

2020

106

43

71.1

65.4

43

20

68.3

62.3

YEAR

Sources: Figures from 1960 through 1980 are calculated from the Red Book (Guilderland: New York ­Legal Publications, vari­ous years), which ­stopped compiling vote totals. We are indebted to Professor Jeffrey M. Stonecash of Syracuse University for providing us with the aggregate popu­lar vote totals from 1982 through 1994. More recent numbers are calculated from the website of the State Board of Elections.



Pa rt i es , P o ­l i t i ­c a l C h a n g es , a n d E l ec t i o n s

83

of victory grew with each subsequent election. During his 1928 campaign for governor, his appeal to urban workers—­particularly Catholics—­transferred to Franklin Roo­se­velt. By 1930, Roo­se­velt’s opposition to Prohibition combined with the beginning of the G ­ reat Depression helped him score one of the biggest victories in state history. With 71 ­percent of the statewide vote, Roo­se­velt won the five boroughs and made substantial if not enduring pro­gress upstate, including almost half of the state’s twenty-­one rural counties. With Roo­se­velt as the Demo­crat’s presidential candidate at the top of the national ticket in 1932, Herbert Lehman won the governorship for the Demo­crats by a still larger margin, though the realignment was only partly reflected in state politics. Despite the fact that Demo­cratic candidates for the State Assembly received 2,374,000 votes to 1,793,000 for the Republicans, the latter retained control of the legislature. ­There ­were essentially two reasons for continued Republican control of the Senate and Assembly. First, the 1894 constitution’s anti-­city strictures on apportionment and Republican-­sponsored redistricting plans made the legislature virtually immune to electoral change. Second, the New Deal realignment in New York—­despite FDR’s temporary surge—­proved a largely urban phenomenon. Building on Al Smith’s enormous popularity as the first Irish Catholic from New York City to run for governor, Demo­cratic enrollments among urban immigrants soared in the metropolis and to a lesser extent in upstate cities. Despite and in some ways b­ ecause of t­ hese trends, most upstate voters remained solidly Republican. Even in Roo­se­velt’s landslide victory over Herbert Hoover in the 1932 presidential election, FDR carried only five counties outside of the city. Indeed, the only county outside of the city that had a plurality of registered Demo­crats in 1932 was Albany. The New Deal realignment gradually continued to gather force—­particularly in the urban centers—as both Governor Herbert Lehman and President Roo­se­ velt began to carve out new policy programs. As much as the Republicans schemed to rig the reapportionment of the legislature in their f­ avor, by the 1940s “the Demo­crats had proved that they sometimes could win control of the Senate, if they are carry­ing the state by landslide or near-­landslide proportions for other offices.”30 The growing weakness of the Republican majority was masked in part by the popularity of Governors Thomas E. Dewey (1943–1952) and Nelson Rocke­fel­ler (1959–1972), but their successes ­were built on their ability to transcend and overcome the rural conservatism of the legislature’s Republicans. Progressive Republicans such as Rocke­fel­ler and U.S. Senator Jacob Javits (1957–1981) ­were able to attract significant support from Demo­crats and in­ de­pen­dents. As the New Deal co­ali­tion faded and voters tired of long-­serving Demo­cratic incumbents such as Governor Mario Cuomo, a strong Republican candidate could mount a significant challenge. A realigning election that

84 C h a pt e r  3

brought another shift t­ oward the Demo­cratic Party throughout the state occurred in 1964. It was solidified in the election of 1974, when Richard Nixon’s crimes and forced resignation from the presidency further alienated New York’s moderate Republicans. Upstate counties that had not elected Demo­crats in de­cades w ­ ere decisively flipped. “Assembly Demo­crats took twenty-­one seats that w ­ ere held by Republicans and lost only two to the Republicans for a net gain of 19.”31 ­Because of a bipartisan deal that allowed the Senate Republicans to draw their own district lines, along with cooperation from the In­de­ pen­dent Demo­cratic Conference (IDC) that kept Republicans in control, they ­were able to maintain a foothold in the system u ­ ntil 2018, when progressive Demo­crats won primaries that essentially eliminated the IDC.. Demo­crats then captured enough Senate seats to prevent the Republicans from redrawing their own district lines or to participate in challenging the districts created by the In­de­pen­dent Redistricting Commission. By 2020, New York was one of the most solidly Demo­cratic states in the u ­ nion; the holder of e­ very statewide office, both US senators, nineteen of twenty-­seven members of the US House of Representatives, and more than two-­thirds of the seats in both ­houses of the state legislature belonged to the Demo­cratic Party. Most polls show New York among the top five states in numbers of voters identifying as Demo­crats. A 2020 study of the average margins of victory of legislators winning elections in all fifty states placed New York legislators near the top. The average margins in New York w ­ ere 31.5 ­percent in the State Senate, seventh-­highest in the nation, and 33.5 ­percent in the Assembly (fourth).32 Throughout t­hese realignments the ­battle for party control in New York State shifted with the flow of population to the suburbs. ­Whether the exurbanites who fled the city following World War II ­were more conservative or their new neighbors and circumstances changed their perspectives, t­ here seems ­little doubt that they did not bring their overwhelmingly Demo­cratic voting be­hav­ior in the city to their new communities. At the same time, suburban voters have not been as reliable a bloc of Republican votes as one might have predicted, instead functioning more as a swing group between the largely Demo­cratic cities and the equally Republican rural areas of the state. To illustrate this point, in 2005 the Long Island del­e­ga­tion in the State Senate was entirely Republican, and t­ here ­were only two Demo­cratic state senators from the city’s northern suburbs, thanks in large part to popu­lar incumbents who developed followings that transcended party lines. Helped in part by their control over Assembly district lines, eigh­teen of the thirty-­one members of this ­house elected from t­ hese same areas ­were Demo­crats (see t­ able 3.2). The suburbs ­were changing both in the New York metropolitan area and around larger upstate cities. Newer suburbanites are more ethnically diverse,



Pa rt i es , P o ­l i t i ­c a l C h a n g es , a n d E l ec t i o n s

Box 3.2  The Rise and Fall of the IDC Despite its modest size—­never more than eight members inside a body of sixty-­three—­the In­de­pen­dent Demo­cratic Conference enjoyed enormous power in the State Senate from January 2011 to April 2018. Although the voters elected a majority of Demo­crats by a small margin in the Senate in 2011, they ­were unable to consolidate formal control ­because of sharp divisions within the party. A small group of more conservative Demo­crats had formed a small caucus within the party, called the In­de­pen­dent Demo­ cratic Conference, in opposition to Majority Leader John Sampson. When Sampson punished the IDC members with poor committee assignments, they turned to the Republicans. In exchange for helping Republican Dean Skelos became majority leader instead of Sampson, IDC members received favorable committee appointments, extra staff and stipends for leadership positions, and the ability to control the flow of legislation to the Senate floor. In 2012, the Demo­crats again won a majority of the sixty-­three Senate seats, including ­those of the four IDC members who continued to run as Demo­crats in the general election. Rejecting calls for unity, the IDC secured a power-­sharing arrangement from Skelos whereby IDC leader Jeffrey Klein and Skelos would each act as president of the Senate for alternating two-­week cycles. This power-­sharing agreement left the Demo­cratic Party without power despite their thirty-­two-­member hold on Senate seats. The dilemma faced by Demo­crats was made worse when State Senator Simcha Felder of Brooklyn announced that he would conference with Republicans. Felder also was elected on the Demo­cratic line in his 2012 general election contest. The IDC’s ability to swing Senate majority votes in one direction or another gave it tremendous power when the 2013–2014 legislative session began. Despite an indication that the group would re­unite with Demo­cratic colleagues in 2014, it maintained a power-­sharing arrangement with the Republicans for the next four years. The perks the IDC members received for ­doing so continued to expand, and so did the IDC’s membership, from four to eight members. In 2018, Governor Andrew Cuomo brokered an agreement in which IDC members rejoined the mainline Demo­cratic Party. Their choice to do so was spurred by successful arguments that the IDC propped up a Senate Republican Party aligned too closely with President Donald Trump. In turn, mainline Demo­crats agreed not to support primary challenges

85

86 C h a pt e r  3

against the eight IDC members, a promise the Demo­crats eventually reneged on, resulting in losses for six of the IDC’s members in their September primaries, including Klein’s loss to a relative po­liti­cal newcomer, Alessandra Biaggi. Demo­crats won a majority in 2018, giving them the power to marginalize the remaining IDC members and Simcha Felder despite Felder’s return to the Demo­cratic fold in the 2019–2020 session. In spite of its rapid fall in 2018, the IDC was a major force in New York State politics. W ­ hether or not another group of legislators ever attempts to replicate the actions of Klein and other members of his breakaway caucus, the legacy of the IDC looms large in the strug­gle for power and privilege in the Senate and beyond. When party cohesion is low, factional disagreements such as ­those that produced the IDC are always pos­si­ble.

­Table 3.2  Divided government in New York: Governor, Assembly, and Senate, 1933–2022 YEARS

GOVERNOR

PARTY

SENATE MAJORITY

ASSEMBLY MAJORITY

1933–34

Herbert Lehman

Demo­cratic

Demo­cratic

Republican

1935–38

Herbert Lehman

Demo­cratic

Demo­cratic

Splita

1939–42

Herbert Lehman

Demo­cratic

Republican

Republican

1943–54

Thomas Dewey

Republican

Republican

Republican

1955–58

Averell Harriman

Demo­cratic

Republican

Republican

1959–64

Nelson Rocke­fel­ler

Republican

Republican

Republican

1965–66

Nelson Rocke­fel­ler

Republican

Demo­cratic

Demo­cratic

1967–68

Nelson Rocke­fel­ler

Republican

Republican

Demo­cratic

1969–72

Nelson Rocke­fel­ler

Republican

Republican

Republican

1973–74

Malcolm Wilson

Republican

Republican

Republican

1975–82

Hugh Carey

Demo­cratic

Republican

Demo­cratic

1983–94

Mario Cuomo

Demo­cratic

Republican

Demo­cratic

1995–06

George Pataki

Republican

Republican

Demo­cratic

2007–08

Eliot Spitzer

Demo­cratic

Republican

Demo­cratic

2009–10

David Paterson

Demo­cratic

Demo­cratic

Demo­cratic

2011–12

Andrew Cuomo

Demo­cratic

Republican

Demo­cratic

2012–13

Andrew Cuomo

Demo­cratic

Demo­cratic

Demo­cratic

2014–15

Andrew Cuomo

Demo­cratic

Republican

Demo­cratic

2016–21

Andrew Cuomo

Demo­cratic

Demo­cratic

Demo­cratic

2021–22

Kathleen Hochul

Demo­cratic

Demo­cratic

Demo­cratic

Source: New York State Red Book (Guilderland: New York ­Legal Publications, vari­ous years). a

With a system of annual elections for the Assembly, the Demo­crats won a majority in 1935, lost in 1936, recaptured control in 1937, and lost again in 1938.



Pa rt i es , P o ­l i t i ­c a l C h a n g es , a n d E l ec t i o n s

87

tending to identify as Demo­crats. Yet at the same time the national Republican Party’s shift to the right—­particularly on issues of concern to w ­ omen—­also resonated in New York, particularly in suburban areas. According to realignment theory, the strength of the Demo­cratic Party in ­these areas grew not gradually but episodically in two critical elections. The more pronounced departure of Long Island Senate Republicans in the 2018 elections was arguably a reflection of demographic shifts and distaste for the Republican national brand ­under President Trump than any sign of a Demo­cratic realignment in New York’s suburban enclaves. With the advantages conferred by incumbency, however, the Demo­crats elected w ­ ill be difficult to dislodge. Following the 2020 elections, the Demo­crats retained half of the Long Island Senate districts and seven of nine districts in the northern suburbs. By firming their control of the Senate in 2020, the Demo­crats gained the power to approve the district lines recommended by the In­de­pen­dent Redistricting Commission for both the Senate and the Assembly u ­ ntil 2032.

New York’s Vanis­hing Marginals Students of Congress have filled thousands of pages exploring the amazing ability of con­temporary members of the House of Representatives to win reelection. “Marginal seats”—­districts in which challengers have a reasonable chance of winning—­have all but dis­appeared. Similarly, in New York relatively few legislators have been at risk of losing, especially in the Assembly but also in the Senate. In 2020, an unusually large number of state legislators (twenty-­one) declined to seek reelection in November, but it seems most would have prevailed in their contests, at least against the opposing party. (Primaries may be another story, and several se­nior Demo­crats in the Assembly w ­ ere upended during their intraparty contests with left-­leaning insurgents backed by the WFP and the Demo­cratic Socialists of Amer­i­ca.) As with the Congress, it is difficult to isolate a single explanatory variable for this decline in electoral competition. Indeed, t­ here is evidence suggesting that incumbents ­running for reelection in New York have always done quite well. Careerism—­the tendency of legislators to seek reelection and make politics a c­ areer—­has increased steadily. Partisan gerrymandering, as we have seen, plays an impor­tant role, too. As in national politics, incumbent legislators have more resources at their disposal, including more staff, bigger printing and postage bud­gets to keep their names in front of the ­people, and the ability of the legislature to deliver both symbolic victories (for example, one-­house bills that ­will never become law) and real policies. As party loyalties among voters weaken, more voters view incumbency as a guidepost for voting. W ­ hether incumbents’ continuing success also is due to their

88 C h a pt e r  3

greater ability to shake the money tree is not entirely clear, but it certainly does take a lot of money even to think about challenging a sitting member of the legislature. “In the Assembly in 1984 incumbents spent on average $22,625. By 2002 the average had increased to $108,625. In the Senate, the average expenditure increased from $35,054 in 1984 to $328,228 in 2002.”33 The increases in direct campaign spending have remained proportionate or spiked even further during the past two de­cades among members who run unopposed. Before a potential candidate can even think seriously about seeking the help of state party leaders in taking on an incumbent, the candidate must be able to show the ability to raise a minimum of six figures to spend on the campaign. In 2018, the average amount spent in competitive State Senate contests was $446,000 in primaries and $574,000 in general elections, with one race actually costing more than three million dollars.34 In the final analy­sis, legislative elections are won on a district-­by-­district basis, and variations in turnout and patterns of competition can be lost in statewide totals. Still, the data underscore the importance of incumbency and district lines. Reflecting the importance of incumbency, the party holding a majority of seats in the Assembly or Senate has almost always been able to capture a statewide majority for its own candidates. Since the institutionalization of divided government in the 1970s, the percentage of voters supporting Demo­cratic candidates for the Assembly exceeded support for Demo­cratic Senate candidates, despite the more recent successes of the latter in 2016, 2018, and 2020. The Demo­cratic share in both h ­ ouses has grown especially in the Senate as Republican incumbents have retired or been defeated. By 2020, the cumulative vote for Assembly Demo­crats nearly doubled that of the Republicans (59 ­percent to 32 ­percent, with roughly 10 ­percent scattered among minor parties). In the once-­Republican Senate, seventeen Demo­crats ran without Republican opponents while only three Republicans w ­ ere unopposed, and Demo­cratic candidates won 54 ­percent of the two-­party vote. Particularly in primaries, major upsets do occur. Six of the eight members of the In­de­pen­dent Demo­cratic Caucus who had cooperated with the Republicans w ­ ere defeated in 2018, illustrating how even well-­established legislators can be toppled in primaries. One of the major reasons incumbents are particularly vulnerable in primaries is ­because New Yorkers seem resistant to voting for them. The 2018 victory of Alexandria Ocasio-­Cortez over incumbent and power­house congressman Joseph Crowley came ­after she ran a clever, low-­ visibility, almost entirely online campaign targeting younger voters and supporters of Bernie Sanders in the more gentrified areas of Queens through social media. Joseph Crowley never faced a significant challenger and in early polls demonstrated a substantial lead, seldom visiting the district. “With only



Pa rt i es , P o ­l i t i ­c a l C h a n g es , a n d E l ec t i o n s

89

13 ­percent of registered voters g­ oing to the polls, Ocasio-­Cortez’s low-­visibility campaign enabled her essentially to ‘steal’ a seat from a sleeping g­ iant.”35 She won with fewer than 40 votes per precinct and more than 150 in only two precincts; in twenty-­one districts neither candidate won more than ten votes.36 Similarly, in 2021, the relatively unknown po­liti­cal activist India Walton defeated longtime Buffalo mayor Byron Brown by less than twelve thousand votes in a city of more than 250,000 residents. Brown won the general election as a write-in candidate.

Box 3.3 Giving Away Your Vote In New York, as throughout the United States, a growing number of ­people prefer to think of themselves as “in­de­pen­dents,” unaffiliated with any or­ga­nized po­liti­cal party. As in most states, voters in New York, when registering to vote, have the option of enrolling in any of the official parties or of refusing to state a party preference. How you register has nothing to do with how you vote in November: in the secrecy of the voting booth, a registered Demo­crat can vote for In­de­pen­dents, Republicans, or what­ever candidates on what­ever lines the voter prefers. New York, however, has a closed primary system; an election law allows only the enrolled members of a party to vote in its primaries. This law is designed to protect each party from being “raided” by outsiders from rival parties seeking to choose the weakest pos­si­ble candidate to run against. Thus, a registered Conservative cannot vote in the primary election of any party but the Conservative Party. Voters who declare themselves in­de­pen­dent by not checking a party preference when they register cannot vote in any primaries. By registering as in­de­pen­dents, in other words, they have effectively disenfranchised themselves in what is often the most impor­tant election. What if you change your mind? Suppose a person not registered in the Demo­cratic Party became interested in the Clinton-­Obama primary race in 2008? Sorry, buddy, not this time! ­Under New York law, if you change your party registration you must wait u ­ ntil ­after the next general election to vote in your new party’s primary. Despite this fact, ­there w ­ ere nearly two million registered voters in New York as of 2008—­more than 20  ­percent of the electorate—­who made themselves ineligible to vote in any party primaries in 2008 by refusing to state a party preference. In New York, po­liti­cal “in­de­pen­dence” comes at a high price.

90 C h a pt e r  3

New York City and the Cycles of Reform In national and statewide elections, New York City’s five boroughs have been and continue to be overwhelmingly Demo­cratic. Since Franklin Delano Roo­ se­velt, the city has been almost as resoundingly liberal in its po­liti­cal orientation. Its members of Congress, state senators, and Assembly members always receive high ratings from liberal groups and low ratings from po­liti­cal conservatives. Voters registered as Demo­crats have exceeded t­ hose registered as Republicans by a margin of three to one, except for one year, since 1930, with more than two-­thirds of individuals registering with a major party listed as Demo­crats. Quintessentially Demo­cratic, New York City has elected almost as many non-­Democratic mayors as it has Demo­crats. Even in the salad days of Tammany Hall, so-­called fusion candidates—­uniting dissident Demo­crats with Republicans and other outsiders against the machine—­were a per­sis­tent, often successful characteristic of city politics. Some of the city’s most famous mayors, including Fierello LaGuardia, John Lindsay, and Rudolph Giuliani, began as outsiders and Republicans. So, too, did Michael Bloomberg, who switched his party registration from Demo­crat to Republican in 2001, and from Republican to In­de­pen­dent in 2009 (prior to his bid for a third term, u ­ nder the auspices of a temporary charter provision created to allow him to run again), only to switch back to the Demo­cratic Party on leaving office in 2014, when he launched a presidential bid that fell flat in the 2020 primaries. From the late 1950s through the early 1980s, the locus of reform politics shifted away from the traditional fusion model to a strug­gle within the Demo­ cratic primary between its younger reform wing and organ­ization regulars. John Lindsay won his first campaign for mayor in 1965 as a fusion candidate ­running on the Republican and Liberal Party lines, depicting his opponent—­ Democrat Abe Beam—as a tool of the old club­house “bosses.” Lindsay won by a margin of one hundred thousand votes, polling 43 ­percent of the total vote to 39 ­percent for Beame and 13 ­percent for William F. Buckley, the Conservative candidate. While Buckley succeeded in cutting into the Republican base, Lindsay won by maintaining this bloc of voters along with a substantial bloc of reform voters (on the Liberal Party line) traditionally loyal to the Demo­crats. As he prepared for his reelection campaign—­and it became increasingly clear that Lindsay would have trou­ble holding his Republican base—­the mayor sought and received the backing of prominent Demo­crats and the leaders of the municipal ­labor ­unions. A few months l­ater, the mayor made it official and became a Demo­crat. The victories of Republicans in contests for mayor of New York City generally have their roots in the lingering rivalries of candidates in Demo­cratic prima-



Pa rt i es , P o ­l i t i ­c a l C h a n g es , a n d E l ec t i o n s

91

ries. With the organ­ization splintered between reform and regular factions, Demo­crats in the legislature passed a law in 1969 requiring a runoff if no candidate received more than 40 ­percent of the primary vote. A consensus Demo­ crat was less likely to lose to a fusion candidate in the general election. This occurred throughout the 1970s and 1980s as the winners of Demo­cratic primaries—­sometimes with minor-­party help, sometimes not—­became mayor. In retrospect, a more profound shift began in the Lindsay years. Splintering occurred along both ethnic and ideological lines of the “New Deal” co­ali­tion, reaffirming New York as a liberal Demo­cratic city. The alienation of white ethnics and many Jewish voters—­particularly in the outer boroughs—­and the growing isolation of Blacks and Latinos became a per­sis­tent theme in city politics. “In the wake of the racial conflicts of the Lindsay era, many liberal whites, especially Jews, joined then-­Congressman Ed Koch in moving ­toward the more defensive, conservative positions already held by ­those who provided the social base for the regular Demo­cratic clubs.”37 As the reform movement that united liberal whites and minority groups ­behind Lindsay began to splinter, the Republican Party began lurching to the right. Deserted by moderates like Lindsay and paralleling the rise of the party’s Reagan faction in national politics, New York’s Republicans became increasingly unlikely candidates for fusion. What­ever mass base the Liberal Party ever had dis­appeared. From 1973 to 1985, the Demo­cratic primary for mayor was the only election that counted, and a badly splintered reform movement saw moderate and conservative candidates win relatively easy victories. Splits between Blacks and Latinos and vari­ous factions of the reform movement led one liberal candidate for mayor to observe that “if reform Demo­ crats ­were asked to form a firing squad the first order would be to form a circle.” The biggest of ­these circles was formed was in 1977, when a rec­ord nine hundred thousand primary voters narrowly selected Ed Koch over a field that included three members of Congress, a borough president, Mayor Beame, and a novice candidate from Queens named Mario Cuomo. The gap between the candidate garnering the most votes (Koch) and the least was eighty thousand votes, with each candidate showing l­ittle ability to reach beyond his ethnic, ideological, or neighborhood base. By moving to the right, Koch was able to build a remarkably diverse co­ali­tion for his 1981 reelection campaign, winning the nominations of the Demo­cratic, Republican, and Conservative Parties. With his popularity seeming to cut across ethnic and ideological lines, Koch de­cided to run for governor and became the party’s endorsed candidate against Mario Cuomo, whom he had beaten for mayor five years ­earlier. As quickly and unexpectedly as Koch ­rose to power, his co­ali­tion fell apart. “Within months,” as historian Richard Wade notes, “the euphoria of victory

92 C h a pt e r  3

was replaced by unfolding scandals that spread throughout the administration and reached into the inner rooms of city hall. The press was soon comparing the administration to the dark days of Jimmy Walker and Boss Tweed.”38 The 1989 election of the city’s first Black mayor—­David Dinkins—­seemingly restored the liberal Demo­cratic co­ali­tion that had dominated city government for so long. Dinkins benefited not just from the scandals plaguing the incumbent Koch but also from a series of incidents seeming to reveal insensitivity on Koch’s part to issues of race, degrading ­every part of the mayor’s co­ali­ tion. Most strikingly, Koch’s support among Blacks and Latinos dropped by more than 30 ­percent, and turnout in Black districts was up by almost 30 ­percent as well.39

Beyon d Fu s i on The general election pitted Dinkins against a former federal prosecutor, Rudolph Giuliani. Unlike the typical fusion candidate—­exploiting a split between the regular and reform wings of the Demo­cratic Party—­Giuliani appeared to have l­ittle chance of succeeding. But, as John Hull Mollenkopf writes, race, and more specifically, racially based mistrust, provided a new basis for whites who traditionally voted for the Demo­cratic nominee to defect from their party. . . . ​White liberals, blacks, and Latinos (and by definition more strongly partisan voters) figured less heavi­ly in the general electorate than in the Demo­cratic primary electorate. In the general electorate, Republicans, in­de­pen­dents, and whites ­were more numerous.  .  .  . ​­These conditions opened the way for Rudolph Giuliani to seek to reconstruct the Koch co­ali­tion of white Catholics and Jews along somewhat more conservative lines than Mayor Koch had pursued.40 Dinkins prevailed in large part due to a massive get-­out-­the-­vote drive that was particularly effective in Black neighborhoods. In ethnic and ideological terms, Dinkins’s victory was a traditional co­ali­tion triumph cutting across a variety of cleavages. The Dinkins co­ali­tion, as Mollenkopf concludes, “resembled ­those that powered racial succession in other cities to the extent that it relied upon an extraordinary mobilization of his core constituency of blacks. But it differed from them in the degree to which it would have to rely on other constituencies as well. It had to include white liberals, Latinos, and indeed a significant number of the outer-­borough Jews and white Catholics who had supported Mayor Koch. This black-­led, biracial and multiethnic insurgent co­ ali­tion constitutes a fundamentally new ele­ment in New York’s po­liti­cal development, one that has few national counter­parts.”41 Nor was it sustainable



Pa rt i es , P o ­l i t i ­c a l C h a n g es , a n d E l ec t i o n s

93

in New York. Dinkins soon found himself embroiled in prob­lems of racial polarization, and the balance of power tipped enough in November 1993 to revive Giuliani. Although Giuliani secured both the Republican and Liberal nominations, his was not a traditional fusion campaign. Unlike such fusion candidates as LaGuardia and Lindsay, Giuliani was not a champion of reform and did not campaign to the left of the regular candidate. It would be misleading to describe the shift from Dinkins to Giuliani simply in ethnic terms, if only b­ ecause the shifts ­were small. Having won by fewer than fifty thousand votes in 1989, Dinkins lost by a comparable margin in 1993, a shift of less than 3 ­percent. In sum. “Dinkins’s difficulty was clearly related to the fact that many p­ eople, even among blacks and ­others who had supported him in 1989, had concluded that he had performed poorly as mayor.”42 In 1997, Giuliani’s first term—­marked by a boom on Wall Street and a continued drop in the crime rate—­won generally high marks from the electorate, and he cruised to victory in his reelection campaign. B ­ ecause of a law limiting the mayor of New York to two terms, Giuliani was unable to run for reelection in the aftermath of the attacks on the World Trade Center, but another nontraditional candidate was able to win. Formerly a Demo­crat, Michael Bloomberg’s victory on the Republican Party line marked the first time in modern history that New York elected two Republican mayors in row, and his reelection in 2005 suggested a party realignment. Bloomberg’s willingness to spend more than $70 million of his own money in 2001 and 2005 (and almost $100 million in 2009, when he narrowly won a third term made pos­si­ble by a temporary exception to the City charter) aided his victories along with his relatively liberal stand on a number of issues. The city’s peculiar combination of ethnic, partisan, issue, and power politics results in a continuing kaleidoscope of shifting co­ali­tions that are tangentially related to state and national trends. Even in the first Dinkins campaign—­ arguably the most racially polarizing in the city’s history—­“what is in­ter­est­ing . . . ​ was not their degree of racial polarization, which was to be expected, but the degree to which they w ­ ere not governed by race alone.”43 The Giuliani victory in 1997 was similarly unique in its ability to cut across traditional ethnic, partisan, and ideological bound­aries. Despite a landslide victory, the mayor had no coattails. Demo­crats retained a margin of forty-­six to five in the City Council, as they did for most of the Bloomberg years, and Republicans have fared even worse since Bloomberg. Following a bruising primary ­battle, former City Council member and public advocate Bill de Blasio reanimated the multiracial Dinkins co­ali­tion and combined forces with a younger, more progressive pool of voters across many parts of the city (excluding Staten Island). Mayor de Blasio

94 C h a pt e r  3

assumed office in 2014 promising to eliminate the racially motivated policing policies established ­under Giuliani and Bloomberg, while also redressing “economic inequalities” that affected hundreds of thousands of residents excluded from the city’s development booms during the reign of his two pre­de­ces­sors. Thirteen Demo­crats vied to replace the term-­limited and increasingly unpop­u­lar de Blasio ­under the new ranked-­choice voting system. In contrast with previous primaries, the old fault lines between regulars and reformers became a multifaceted, highly fragmented strug­gle featuring almost e­ very racial, ethnic, ideological, and po­liti­cal faction in the party. With ranked voting adding new levels of complexity to the pro­cess, the relatively moderate Brooklyn borough president Eric Adams assembled a broad co­ali­tion of voters and became the city’s second Black mayor. Ranked closely ­behind Adams was Katherine Garcia, while Ma­ya Wiley came in third in a competitive race.

The Dilemmas of the Parties Despite the previous and sometimes surprising successes of Republicans in winning control of Gracie Mansion, even the most popu­lar Republican mayors have shown l­ittle or no ability to build the party’s strength in New York City. The number of Republicans elected to other offices in the city has been and remains trivial. Except in small pockets of Staten Island, the only elections that concern candidates for City Council, judgeships, and seats in the state legislature are Demo­cratic primaries. Since 1974, the Demo­crats have expanded their base to encompass urban areas and some of the older, less affluent suburbs. In statewide Demo­cratic primaries, the city continues to cast roughly 60 ­percent of all the votes. In contrast, the Republicans’ primary electorate consists of upstate, conservative, and white New Yorkers. So does their rapidly fading contingent in the State Senate. The dilemma of both parties is escaping inherent polarization. The task is made increasingly difficult by national trends, especially ­after the emergence of the Freedom Caucus in the US Congress in 2010, the “Occupy Wall Street” movement, and the 2016 and 2020 presidential elections. Although the Demo­crats’ more moderate wing prevailed in New York City’s mayoral election, the party’s progressive wing made impressive gains in the primaries for City Council and other offices.44 Potential candidates surveying their chances of being elected in New York State cannot ignore the historic and ­legal f­actors described herein. To run for office in most parts of New York City, it helps to be a Demo­crat. While being a Demo­crat for most state offices was once a near-­fatal defect in upstate New York, times have changed, as evidenced in 2018 and 2020. The support of the



Pa rt i es , P o ­l i t i ­c a l C h a n g es , a n d E l ec t i o n s

95

formal party organ­ization—­essential in most parts of the state during the heyday of the machine—is more peripheral t­ oday. Still, four ­great contextual realities define the par­ameters of politics in New York, which distinguish it from most other states. First, the Demo­cratic and Republican Parties in New York are essentially three party operations loosely joined by a network of local institutions and a formal framework of l­ittle real significance. The parties that count are t­ hose that compete for control of the State Senate, the Assembly, and the executive branch (the governorship). Internally, each major party operates in­de­pen­dently of one another and the local organ­izations that contest municipal, county, and judicial offices. Second, major-­party systems are supplemented and sometimes swayed by a unique array of satellite parties—­Working Families and Conservatives in particular—­whose support often keeps the major parties on their toes. Third, the kinds of demographic and economic variables that frequently explain electoral be­hav­ior lose their explanatory power in New York due to the continuing importance of region. More than in any other state, politics in New York is defined by a sharp cleavage that distinguishes New York City and a number of its suburbs from the rest of the state. Fi­nally, New York is dif­fer­ent from most other states b­ ecause its elected officials have worked deliberately to make it dif­fer­ent. First, the New York State Assembly has been unassailably Demo­cratic, while the Senate was reliably Republican for four de­cades. Second, the success rates of incumbent legislators ­running for and winning reelection is high. Third, the turnout rates of voters in New York elections is especially low. All of ­these are the products not just of demography and change but of a set of election laws crafted by incumbent politicians protecting their own interests. New York’s election laws are by far the most complex in the United States, helping to account for the frequently cited fact that more than half of the election law cases filed in the courtrooms of the fifty states are filed in New York. T ­ hings that are relatively s­imple and straightforward in forty-­nine other states can be quite complicated in New York. And they are complicated for a reason: the elected officials who make the laws that govern their own chances of reelection like it that way. It is pos­si­ble that unified government in Albany—­the governor and two legislative h ­ ouses being controlled by one party—­ will produce tools for participation such as early voting and other reforms that make involvement easier for residents across the state. New Yorkers’ rights to exercise their franchise is marked by 150 years of Byzantine complexity that is reflected in unusually low turnout in both statewide and legislative elections. When describing po­liti­cal parties, V.O. Key Jr. suggested t­ here w ­ ere three distinct but overlapping circles: the party in the electorate, the party organ­ization, and the party in government.45 Mirroring party affiliation at the national level, the party in the electorate is harder to find in New York, where nearly one in five

96 C h a pt e r  3

voters is not registered with a party and party-­line voting is increasingly uncommon. Paradoxically, however, as one moves from voters to institutions, party lines are in many ways more sharply ­etched in New York politics than in the politics of most other states. In the aggregate, the party organ­izations are weaker than they once w ­ ere. But if the days of Tammany and its counter­parts are in the past, t­ here are still

Box 3.4  Toward a One-­Party State? In 2020, the state’s Demo­crats built on a series of legislative victories affording them more than two-­thirds of the seats in both h ­ ouses of the legislature. Occupying both U.S. Senate seats and the offices of the governor, lieutenant governor, comptroller, and attorney general, the Demo­crats became the first party in recent history to control ­every one of the state’s major offices. The Demo­crats’ legislative victories in 2018 and 2020 ­were aided and abetted by antipathy ­toward President Trump; however, the demise of the Republicans had been building for more than a de­cade. ­Factors such as the popularity of a number of se­nior incumbents in the State Senate, divisions in the Demo­cratic Party, and the Republicans’ ability in 2010 to draw the bound­aries of State Senate districts had allowed the Republicans to maintain control of the Senate as long as they did. Currently t­here are twice as many registered Demo­crats than Republicans in New York, and Republicans have not won a statewide election since 2002. Is New York now a one-­party state? Clearly the ­Grand Old Party (GOP), as the Republican Party is often called, is far from dead. It remains well or­ga­nized in almost all parts of the state, able to raise substantial funds for its candidates and control more than forty of the fifty-­seven county governments outside of New York City. In some 2021 local elections, Republicans ­were quite successful—­ winning, for example, in Nassau County and Staten Island. They also succeeded statewide, defeating three proposed constitutional amendments that the Demo­crats ­were so confident would pass that the party did not bother actively to support the amendments’ passage. The Demo­crats, moreover, are divided among their core voters, with a growing progressive insurgency. ­Whether the Republican Party—in close alliance with the Conservative Party—is well enough or­ga­nized and financed to take advantage of schisms in the Demo­cratic Party remains to be seen.



Pa rt i es , P o ­l i t i ­c a l C h a n g es , a n d E l ec t i o n s

97

strong party organ­izations in New York. At the statewide level the Republican Party continues to control nominations, raise money, and contest elections with e­ very bit as much vigor as it did in the heyday of Dewey and Rocke­fel­ler, irrespective of recent results in races for ­those offices. Moreover, the po­liti­cal organ­izations associated with the parties in the legislature—­both Republican and Democratic—­are considerably stronger than they have ever been. In New York City, remnants of the old Demo­cratic organ­ization continue to exert clout in the outer boroughs, where major-­party organ­izations still tend to have a foothold. As Mollenkopf notes, “while they have much less influence over who wins the mayoralty than they once did, candidates supported by the Bronx, Queens, Brooklyn and Staten Island organ­izations typically win elections for lesser offices and can absorb most of the few insurgents who win elections against them.”46 It remains to be seen what impact recent organ­izing efforts by “Justice Democrats”—­aligned with the Demo­cratic Socialists of Amer­i­ca, Black Lives ­Matter, and other reform-­oriented subgroups—­will have, but it would be unwise for party activists or observers to conclude that the results of recent elections in 2018 and 2020 represent an inevitable victory for insurgents. Strong party organ­izations are not reflected in aggregate-­level studies comparing state party systems that focus on the state committees. When one takes into account the legislative party organ­izations and influence of many local leaders, the real­ity is that the strength of parties as organ­izations in New York should be ranked in the top quartile of the fifty states. Fi­nally, when it comes to the party in government, parties in New York have not declined in the slightest. As we argue in chapter  6, party organ­izations—­particularly in the state legislature—­have become central institutions that shape public policy in New York. Where once party leaders in Albany relied on county leaders to keep legislators in line, t­ oday it is local leaders who come to Albany as supplicants, seeking to win f­ avor not only with statewide officials, such as the governor, but also with the Assembly Speaker and senate majority leader, who have tremendous sway with their party conferences. In few states are the parties in government as strong as they are in New York; in no state are they stronger.

C h a p te r   4

Power, Pluralism, Public Opinion, and the Permanent Government

Except for one brief period in 2009, partisan control of New York’s government was divided. Governors of both parties (five Demo­crats and one Republican) worked with a consistently Republican State Senate and a Demo­cratic Assembly. In 2018, when the Demo­crats won both the governorship and both ­houses of the legislature, it marked the first time in forty-­three years that one party controlled the executive and legislative branches. Following this, a number of Demo­cratic policy proposals that had long languished in the Republican Senate became law. The Demo­crats’ newfound ability to enact major changes by reforming the criminal justice system, increasing the minimum wage, ensuring abortion rights, improving access to the suffrage, and strengthening environmental laws resulted from the 2018 elections. Dramatic turnarounds such as t­ hese are rare, and they illustrate— if nothing else—­that elections have consequences. Despite the significant policy changes at the state level that emerged following the 2020 elections, many Americans continue to believe the same power­ful interests control public policy regardless of who is elected. Just as descriptions of entrenched bureaucrats ­running a “deep state” are widely circulated among conservatives, many progressives see “Wall Street” as being similarly in control, no ­matter what the outcome of the popu­lar vote. While some ­people—­stockbrokers and bureaucrats among them—­have more po­liti­ cal influence than o ­ thers, in New York the idea that t­ here is some single source 98

P OWER , P LURALIS M , P U B LIC O P INION , AND T HE GOV ERN M EN T

99

of power controlling most major decisions has l­ ittle empirical support. A contrasting model, long popu­lar among po­liti­cal scientists, stresses the pluralistic nature of power, in which power is dispersed among numerous groups that strug­gle for influence and control. In what became known as group theory, public policy was seen as the outcome of this group competition. But while the scope of group politics is wide in both state and nation, and while special interests are manifestly influential at all levels of politics, the real­ity of power cannot fully be explained simply in group terms.

Patterns of Power What students of politics have realized is that no single theory of power adequately explains the po­liti­cal landscape. Dif­fer­ent “arenas,” as Theodore Lowi defined them, display dif­fer­ent configurations of power.1 ­These configurations are not static over time. Elections—­especially ­those like the 2018 contest that put the Demo­crats in control of the state—­are impor­tant. But to truly understand who runs New York, one must delve beneath the surface of what happens in Albany to understand t­ hese arenas of power. In general terms, five overlapping patterns of power explain ­these pro­cesses. The first of t­hese powers, at the state and local level, are groups so highly privileged that if they do not constitute a “power elite,” they are generally able to dominate the system on issues of their primary concern. This is especially likely in states or cities with a single dominant industry, such as gambling in Nevada, oil and gas in Oklahoma, tourism in Hawaii, and farming in Kansas. Unlike the or­ga­nized groups that students of state politics focus on, whose lobbying and campaign contributions are overtly po­liti­cal, the interests represented by dominant economic groups are so impor­tant to ­these state’s economies that ­these groups do not ­really need to lobby. Almost e­ very municipality has a power structure or regime that is not formally recognized in its formal governance. ­Every politician knows that certain industries or institutions are so central to regional prosperity that they must be protected. For all their ability to protect their core interests, however, ­these po­liti­cal power­houses are generally unable to leverage this to influence education policy, gun control, or health policy. The larger and more pluralistic the economy, the less dominant any single group is likely to be. With a diversity of issues, members of this elite are sometimes individually influential but lack a collective w ­ ill to constitute a true power elite. A second pattern of power—­pluralistic—is more fractured and diverse. The larger and more complicated the regime, the more intricate its universe of or­ ga­nized interests. This does not mean that all groups in society are equally

10 0 C h a pt e r  4

represented or even represented at all. The almost religious fervor with which po­liti­cal scientists once promoted the pluralistic nature of group politics was never realistic, ­because it failed to recognize the ­limited universe of interests that are actually or­ga­nized, and it did not explore how t­ hose groups w ­ ere themselves governed. The notion that interest groups equally represent all impor­tant sectors of society is a myth. In the oft-­quoted words of E. E. Schattschneider, “the flaw in the pluralist heaven is that the heavenly chorus sings with a strong upper-­class accent.”2 Even within the narrow universe of groups that are or­ga­nized, the nature of who and what are represented is not clear. Implicit in group theory is a vision of individual citizens coming together in voluntary associations to better schools; ban (or not ban) abortion; or aid dairy farmers, the disabled, se­nior citizens, chiropractors, ­bottle makers, hunters, or realtors. Empirically, however, most or­ga­nized interest groups “are not associations of individuals” so much as such abstractions as corporations, universities, and trade associations—­raising, as Kay Lehman Schlozman, Sidney Verba, and Henry Brady argue, “serious questions of whose interests are being represented.”3 Quoting Justice John Paul Stevens’s dissent in Citizens United v. FEC (2010), the campaign finance case, they write: “It is an in­ter­est­ing question ‘who’ is even speaking when a business corporation places an advertisement that endorses or attacks a par­tic­u­lar candidate. Presumably it is not the customers or employees, who typically have no say in such ­matters. It cannot realistically be said to be the shareholders, who tend to be far removed from the day-­to-­day decisions of the firm and whose po­liti­cal preferences may be opaque to management.”4 Similarly, members of trade associations—­realtors, restaurants, ­lawyers, accountants, and so on—­typically join t­ hese organ­izations for professional or information purposes that have l­ ittle or nothing to do with the positions their “representatives” promote on public policy issues. The power of interest groups is strongly related to the third form of po­liti­ cal power: government institutions. The relative influence of private groups stems from the privileged access many of them have to par­tic­u­lar parts of government in what Stephen Skowronek and o ­ thers have called the administra5 tive state. In it, t­ here is a growing “associational synthesis” between private associations and government agencies, in which state power is wielded in close cooperation with nongovernmental institutions.6 Particularly as the size and scope of government activity has grown, ­there are tight bonds between experts in government agencies and their counter­parts in the private sector. ­There actually are “deep states,” or—­more accurately—­deep subsystems or ministates, where highly specialized lobbyists and expert civil servants in­de­ pen­dently run their sectors of policy. Hundreds of national and state statutes

P OWER , P LURALIS M , P U B LIC O P INION , AND T HE GOV ERN M EN T

101

essentially identify prob­lems and the general direction of policy but leave it entirely to experts to fill in the detail. Policy entrepreneurs and street-­level bureaucrats are best equipped to determine the details. State laws that mandate standards for acceptable drinking ­water, for example, require hydrologists and chemists to set the standards. So, too, laws governing the speed limits on dif­fer­ent kinds of state, county, and local roads delegate to highway departments the power to decide the precise points at which the limit drops from forty-­five to thirty. And it is largely left to the police to decide w ­ hether the “real” speed limit in a thirty-­mile-­an-­hour zone is thirty-­three, thirty-­six, or forty-­two. T ­ here is no conspiracy. It simply makes sense in dealing with technical issues and the details of statewide policies to allow t­ hose who best know how to formulate and implement policy to do so. The goal, however, is to keep them accountable, which is the major job of elected officials. Elections constitute the fourth source of power. Generally, government is what uniformed and other government officials do, but the key to what they tell us is what we tell them when selecting elected officials by voting. In New York, the 2018 and 2020 election of large Demo­cratic majorities in both ­houses of the legislature had major and immediate policy consequences. Despite the re­sis­tance of most police forces and such power­ful interest groups as t­ hose representing police and corrections u ­ nions, sweeping changes to the criminal justice system ­were enacted. Despite objections by the power­ful gun lobby, ­there ­were increased restrictions placed on guns. Abortion rights w ­ ere enacted with increased penalties for sexual harassment. Many of t­ hese laws languished in the legislature for years before the critical elections of 2018 and 2020 changed the equation, resulting in a more liberal legislature to enact ­these policies. The fifth f­actor explaining the contours of public policy is public opinion. While or­ga­nized groups such as Black Lives ­Matter and the #MeToo movement played a direct role in lobbying the legislature, more impor­tant w ­ ere shifts in public opinion arising from national events that served as a catalyst to bring long-­ dormant inequities of race and gender to the fore. Even more dramatic was the shift in general public attitudes on gay rights, compelling changes not only in state legislatures but in the courts as well. In 1997, only 27 ­percent of Americans favored gay marriage, but by the time of the Supreme Court’s Obergefell v. Hodges (2015) historic decision, nearly thirty-­eight states had legalized some form of gay marriage, and by 2021 70 ­percent of Americans favored legalization.7 It is not just politicians who follow public opinion polls on issues such as t­ hese; the w ­ hole constellation of forces, from elites to elected officials and interest groups to bureaucrats, respond to ­these shifts in their po­liti­cal environments.

10 2 C h a pt e r  4

The five forces described as constituting the power environment—­the “establishment,” interest groups, government officials, voters, and public opinion—­ underline po­liti­cal forces that shape New York State politics. To the extent that ­there is a power elite, its primary interest is in retaining its preferred position. Most interest groups are similarly in the business of protecting themselves, as are bureaucrats. Major changes in policy tend to come about only in the wake of critical elections or major shifts in public opinion, both of which are relatively rare. What cannot be overemphasized, however, are the ways in which all t­ hese forces interact with each other to define the locus of po­liti­cal power and how impor­tant it is that they do. While elections are arguably the most significant engines of policy change, they are at best crude instruments of responsive government. Summarizing an extensive lit­er­a­ture, it seems that the impact of candidates’ policy positions are modest at best. Voter preferences are “often likely to be vague, uninformed or incoherent” with a large gap between what voters “want” and what is in their best interest.8 So-­called populist movements, based more in ethnic prejudice, personality cults, and vague slogans, provide ­little if any guidance at all. What elected politicians generally do to interpret and implement their electoral mandates is to fill in the details in consultation with bureaucrats, interest groups, and other government officials who are not unaffected by the outcomes of elections and shifts in public opinion. In sum, ­there is no single answer to the question of “who governs.” Yes, in each state and nationally t­ here is a power elite whose power is ­limited in scope but seldom challenged. Yes, a wide but not broadly representative range of diverse interests are players in what we might call the pressure system. Yes, bureaucrats and nongovernmental experts often fill in the details of policy in the areas of their expertise. And yes, elections do m ­ atter. And, fi­nally, major—­sometimes ineffable—­ shifts in public attitudes can decisively shift the contours of the po­liti­cal. The mix of ­these sources of power and influence differ from one state to another and over time. Below we examine each of ­these five forces in more detail as they set the context of con­temporary politics in New York.

New York’s Power Elite Economic realities and the interests of key business leaders in New York most certainly set significant limits on the range of policies government can reasonably consider. Although t­here are potentially enormous sources of untapped revenue on Wall Street and among the state’s many multimillionaires, the ­will to tax or regulate them is seldom strong. ­Every New York politician knows that ­these companies can—if sufficiently unhappy—­move out of the state, and busi-

P OWER , P LURALIS M , P U B LIC O P INION , AND T HE GOV ERN M EN T

103

ness leaders are not shy about threatening such moves. When a com­pany leaves the state it stops paying New York taxes, and its employees stop paying taxes and buying goods and ser­vices from other New York companies. When t­here is a collapse on Wall Street—­especially one with the magnitude of the 2007–2008 crash—­the state loses billions of dollars in income tax collections. L ­ ittle won­der that it is sometimes said that when Wall Street sneezes, Albany brings a tissue. A case in point: the stock transfer tax enacted in 1905 imposes a very small percentage fee on ­every security transaction. Ironically, the tax is still paid, though since 1981 the state has quietly rebated ­every penny it has collected. The smaller and less diverse the polity, the more likely it is to have dominant influences. Not surprisingly, students of local government and urban politics have embraced variations of elite theory if only b­ ecause private interests frequently play more vis­ib­ le and significant roles in local as opposed to state politics. Local governments tend to have ­limited powers, making them structurally dependent on key ele­ments in the private sector. Writing about Atlanta, Clarence Stone notes, “especially at the local level the power of public officials may be dwarfed by pro­cesses and activities outside government control.”9 By supporting the city’s educational, civic, and cultural institutions, companies such as Xerox and Kodak ­were for many years more impor­tant in Rochester, New York, than was the local government. Cities and states tend not only to protect their dominant enterprises but to seek new ones. New York continually has used taxpayer money to attract new business, ranging from the publicly financed construction of the Erie Canal two centuries ago to the economic development zones more recently. Throughout the country, governments compete to dangle incentives—­from tax breaks to access roads; from sewer and ­water lines to exemptions from zoning laws— to keep existing employers from moving or to attract o ­ thers from somewhere ­else. Even in the early years of the country, “intense interstate rivalry was often promoted by cities that wished to use state resources to compete for trade with cities in neighboring states.”10 The business interests that benefit from ­these policies do not need to lobby for them; the businesses receive ­these benefits almost as a ­matter of right. This does not mean, of course, that business interests are not consulted or that they did not attempt to influence the details of policy, but the question ­whether such efforts are appropriate is seldom raised. In its earliest years, as noted in chapter 1, New York was among the least demo­cratic of the thirteen former colonies. A landed plutocracy directly supervised both their own properties and the affairs of both city and state. As the electorate expanded, “the shift from a l­ imited franchise to po­liti­cal democracy had . . . ​the consequence of decreasing the personal po­liti­cal participation of the wealthy classes. Insofar as their relations to politics have been

10 4 C h a pt e r  4

concerned, the shift from the early form of po­liti­cal domination to mass democracy had meant a shift from which the wealthy enjoyed a practically exclusive and personal control over politics to a situation in which the po­liti­cal participation of the wealthy classes took mainly an indirect form.”11 In subsequent years—­particularly in upstate New York—­there was a further shift in the relations between upper classes and urban governments as many of the most power­f ul private interests simply withdrew. In Buffalo and other upstate cities, business leaders began to invest in or ­were bought out by enterprises outside of the city. Many corporate offices w ­ ere centralized outside the city, and their local leaders relocated to the suburbs or out of state. By 1986, more than three-­quarters of the region’s workforce was employed by nonregional businesses, “resulting in an under-­representation of key interests within the local leadership structure. Economic power became severed from po­liti­cal power. Branch executives who do not become po­liti­cally active or part of the local elite often face an unsupportive pool of corporate executives in the national office.”12 Business interests are still impor­tant in this scenario, but power is largely detached from politics. As much as local governments must accommodate and reach out to key sectors of the economy, the difference between dealing with them in the city or five hundred miles away at corporate headquarters is significant. Instead of having business elites in prominent roles, politicians in cities such as Buffalo, Rochester, and Syracuse essentially have no local business elite with whom to plan their city’s ­f uture. Not all cities have gone through t­ hese changes, and any number of business leaders remain very active po­liti­cally. Michael Bloomberg, for example, won three elections as mayor of New York City spending tens of millions of dollars of his own money. And a number of the state’s wealthiest citizens play key roles raising money for and acting as advisers to candidates of both parties. They also have disproportionate influence in some impor­tant interest groups. Still, you ­will almost never find advocates for the wealthy on the list of the state’s top lobbyists. Certain core players do not need to pressure politicians: politicians come to them. In general, New York’s economy is too big and complex to have a single dominant industry. Clearly, however, t­here is l­ittle doubt that finance, investment, and real estate (FIRE) play an outsized role. The FIRE group has such a crucial impact on the state’s tax revenues that it remains virtually untouchable for both city and state politicians. Not only is this group seen as key to bringing or keeping jobs in the state, but ­these businesses hold the bulk of state and municipal debt, help allocate investments in government pension systems, and decide where new investments ­will be made and old structures abandoned. New York is a less liberal state than public opinion polls might suggest, in part ­because its public officials—no m ­ atter how liberal they are—­must re­spect

P OWER , P LURALIS M , P U B LIC O P INION , AND T HE GOV ERN M EN T

105

the claims of ­these key players in the private sector, whose sheer size and economic power are so overwhelming as to substantially tilt the playing field. The power of financial elites has increased significantly as wealth is increasingly concentrated. In the 2008 financial crisis, a new term—­“too big to fail”—­ entered the po­liti­cal lexicon, as it became apparent that the failure of the largest banks could so harm the economy as to make the prospects of recovery dim. W ­ hether “too big to fail” means “too big to regulate” is not clear, but “­those interests ­will have an effective and credible threat against the government if the government tries effectively to regulate them.”13 New York’s hidden plutocracy is not invulnerable. Other forces are at work with the state’s size and general liberalism blending t­ hese forces in complex ways. Years ago, Paul Peterson specifically exempted New York City from his argument that urban areas must almost inevitably focus on promoting private investment. In the 1970s, for example, the Koch administration in New York City, as it came into power, “vigorously promoted private investment in office building construction” and “de-­emphasized redistributive spending.” However, this approach not only “did not pursue bud­getary austerity” but also “rapidly expanded all components of city spending as well as social ser­vices.”14 The interplay between the economic realities supporting the so-­called permanent government in New York City and the po­liti­cal pressures from interest groups and the general public is far more complicated than elite theory suggests. This dynamic repeated itself de­cades ­later in 2019, when—­despite the promise of thousands of jobs—­public pressure forced Amazon to abandon its plans to build a huge new ware­house in the borough of Queens. On a statewide basis, in the 1980s, Governor Mario Cuomo pushed the legislature to cut taxes on corporations and high-­income individuals not out of ideological conviction—­indeed, his rhe­toric usually indicated g­ reat sympathy for redistributing income—­nor as a result of po­liti­cal pressure, but out of real concern for the economic impact of such policies on wealthy taxpayers and businesses. De­cades ­later, his son Andrew was similarly reluctant to tax the rich. In defending moderate maximum taxes on personal and corporate taxes, neither of the generally liberal Cuomo governors was playing an electoral card or responding to the traditional kinds of pleasures associated with power­ful lobbies. T ­ here was no “Citizens to Defend Millionaires” lobbying in Albany. ­There did not need to be one. Only in 2009, when the recession caused a major drop in state revenues and forced a major rethinking of the state’s finances, did Governor David Paterson secure a bipartisan compromise that combined significant bud­get cuts with an increase in the tax rate on the state’s highest earners. This “temporary millionaire’s tax” was extended in 2011, again in 2013, and again at a slightly lower rate in 2017. In 2019, when the newly empowered

10 6 C h a pt e r  4

Demo­crats in the legislature pushed to increase the rate and make it permanent, they made the tax permanent but w ­ ere unable to get the governor to agree to an increase.

Or­ga­nized Interests and Pluralism Being or­ga­nized ­matters, and lobbying works. While we have almost never encountered a member of the legislature who would admit that his vote has been swayed as a result of orga­nizational “pressure,” neither would a legislator suggest that most groups that hire Albany representatives are wasting their money. Yet the often popu­lar image of fast-­spending, slick special interest groups dominating the system is a caricature of real­ity. The lobbying community in Albany has been remarkably stable for a number of years in which many public policies have changed significantly, suggesting that other forces—­ elections in particular—­are the root of most major changes. But the rich variety of individuals and organ­izations formally registered as lobbyists continues to play a dynamic role in the state’s politics. ­There are a variety of ways in which interest groups can be categorized, such as single-­interest, multi-­interest, “good government,” economic, and so on. Another way to categorize interest groups consists of analyzing their pay, which ranges from hundreds of thousands a year paid to professionals to nothing, paid to volunteers. Traditionally, Tuesday is lobbying day in Albany, and the halls of the Legislative Office Building (LOB—­where the Assembly and Senate meet and their offices are h ­ oused) are thronged with busloads of citizens ­going from one legislative office to another to make their cases for and against abortion, coyote hunting, increased funding for the arts, and all manner of ­things small and large. ­These groups are rarely effective on their own. It takes a sound, experienced organ­ization ­behind them to get the required numbers of ­people to Albany, guide them to visit t­ hose legislators most likely to be influenced, and brief them on what to say. ­Unless they arrive in surprisingly large numbers (and keep coming back), t­hese citizen lobbyists are seldom an impor­tant force. Indeed, most legislators welcome Tuesday lobbying days as opportunities to expand their own circles of potential electoral support. Legislators (and their staff ) are good listeners and have a way of appearing sympathetic (which they often genuinely are) even when they have no intention of taking action.

Th e Lo b b yi ng C o m m un ity In contrast with the state’s core elites, ­there are some groups whose exposure to government is strong and enduring or whose legislative interests are so in-

P OWER , P LURALIS M , P U B LIC O P INION , AND T HE GOV ERN M EN T

107

tense that their presence as active lobbyists is permanent. Year in and year out, the list of the top interest groups (in terms of expenditures) includes organ­izations interested in issues involving health care, government workers, and education. With health care and education the two largest categories in the state’s bud­get, this is not surprising. Lobbying is a big business in Albany. In 2019, ­there w ­ ere 6,817 individuals registered as lobbyists, and they reported spending more than $298 million.15 Almost e­ very year, the usual suspects on the list of the lobbying community’s biggest spenders are joined by groups with par­tic­u­lar, short-­ range goals. In recent years, for example, Amazon and Uber briefly reached the top ten. Amazon sought help to build its ill-­fated distribution center in Queens, and Uber lobbied the legislators when the legislature considered how to regulate the ride-­share industry upstate. The backbone of Albany’s lobbying community, however, is a group of seasoned regulars for whom lobbying is a ­career. Organ­izations as diverse as the state’s associations of chiropractors, funeral directors, and realtors; the Sierra Club; the Wine Institute; the Ford Motor Com­pany; and the League of W ­ omen Voters maintain a relatively constant presence in the state capitol, both to keep politicians on their toes and to monitor actions of state government that might affect the group’s members. Lobbyists for ­these organ­izations, together with a large group of hired, high-­priced professionals, make their living representing a variety of interests and form a sort of surplus staff—­a reserve army of researchers—­for the legislature, their members, and executive agencies. ­Every day that the Assembly and Senate are in session, each member receives perhaps twenty memoranda from vari­ous advocacy groups touting their positions. While many of ­these memos quickly are discarded, a surprising number are read by Assembly members, senators, and their staff and even kept on file. Just as in most studies of Washington lobbyists, legislators in Albany are more likely to feel helped by lobbyists than pressured. Legislators rely on lobbyists to provide accurate indicators of the concerns of key constituency groups and to provide guidance on technical policy issues. Lobbyists also play a vital role in communicating between and among members—at worst spreading rumors, at best bringing together ­people who might not other­wise know that they had common interests. Asked why a congressman should listen to him, one Washington lobbyist said simply, “­because the member may not know about it. No member of Congress can know all the nuances of e­ very issue that affects their district or their state. It’s too much. ­There are too many variables. What the lobbyist is d­ oing is providing information. Coming back to your question of why do they listen to you, let me answer it in the inverse: Why would they not

10 8 C h a pt e r  4

Box 4.1  The Job of the Lobbyist The term “lobbyist” derives from the days when policy advocates would literally stand in the lobby of the legislature making their case as the members walked into the capitol rotunda. On some tours of the California state legislature, tour guides show the spot where the legendary Artie Samish allegedly handed out $5 bills. One can still find lobbyists in the rooms adjoining the Assembly and Senate chambers in Albany; although none of them hands out money, they do sometimes seek access to par­tic­u­lar members. Most of what lobbyists do, however, is far less vis­i­ble. Their first priority is that of working with their employers, keeping them informed of potential changes in policy that might affect them, and learning themselves about key facts and client needs. The most impor­tant asset successful lobbyists have is information. “I know that I have it right,” one told us, “when they come to me rather than me g­ oing to them.” A second priority is understanding the system, knowing when an agency is planning to issue new regulations, what changes are likely in the executive bud­get, what media are likely to print your press releases, ­whether any of the state’s numerous authorities are considering or can be persuaded to help your cause, what pending court cases and acts of local governments are coming up, and what other groups are ­doing that might help or hurt your cause. It helps to be a policy wonk, but most effective lobbyists are specialists in both research and making connections. Woody Allen once said that 80 ­percent of success is obtained by just showing up, and what is sometimes called social lobbying does play a role in Albany. The same ­faces keep showing up week ­after week at committee meetings, the fund­rais­ ing receptions of committee members in which po­liti­cal gossip is the norm, press conferences, and annual meetings and receptions of groups such as the State University of New York trustees. T ­ here are dozens of ­these invisible colleges or networks of lobbyists, legislators, and bureaucrats, all working in the same policy subsystem. The central component in all ­these transactions, as noted in the main text, is information—­new facts, changes in policy, shifting po­liti­cal alliances—­and providing reliable information may often mean including an honest portrayal of opposing arguments. Cynics see politicians—­appropriately sometimes—as dissemblers and liars, but within the policymaking community influence derives from

P OWER , P LURALIS M , P U B LIC O P INION , AND T HE GOV ERN M EN T

109

trust. From the perspective of the typical legislator, “good information is impor­tant not just for arguing within [the legislature] . . . ​but also for justifying one’s position to constituents. . . . ​As unquestionable as is the . . . ​thirst for good information, the distaste for bad information is even more pronounced.”16 And the distaste for ­those who supply bad information can seldom be washed away. In the long run, it is neither resources nor charm that makes a lobbyist successful. It is credibility.

listen to me?”17 A professional lobbyist becomes a known commodity, gradually building trust by never lying and by understanding what kinds of po­liti­cal forces each member confronts. The more lobbyists are seen as a source of reliable information rather than pressure, the greater their long-­run success. The larger lobbying firms also have frequent interactions with policymakers in all three branches of the government at all levels. Their ­legal experts churn out amicus curiae (friend of the court) briefs for the courts, working with civil servants who are fleshing out administrative regulations implementing new laws and with local governments that are trying to figure out how par­tic­u­lar laws ­will affect their communities. ­There are some impor­tant differences between Albany and Washington. The legislative community in Albany is much smaller and more intimate. It is not difficult to talk with the members themselves rather than being filtered through staff or given a cursory two-­minute appointment. An Albany lobbyist can still enjoy a drink on State Street with a senator or join a group of Assembly members for a late-­night after-­session plate of pasta at Café Capriccio or a plate of buffalo wings at McGeary’s. At the same time, the lobbyist’s job in Albany is constrained and channeled ­toward majority-­party leadership. While no one totally ignores minority-­party members, ­there is ­little to be gained by spending much time with e­ ither Assembly Republicans or, u ­ ntil recently, Senate Demo­crats. The dominant roles of party leaders put most lobbyists a step away from the real decision maker: when you lobby an individual member on anything but a trivial issue, what you are essentially trying to do is to get the member in turn to “lobby” party leadership to move the issue along. Not to be minimized in all this is the flow of information in the opposite direction. Lobbyists who have built sound relationships of trust with committee chairs or key ­people in the governor’s office can alert their clients to impending prob­lems. To be able to know what changes are planned a month before the governor actually pre­sents the bud­get is to be that much further ahead of other groups, or ­those who have no Albany lobbyists, in planning an

11 0 C h a pt e r  4

agenda. To understand the full implications of a planned regulatory reform gives your com­pany a significant competitive edge. Similarly, the college, school district, county, or highway department that has some idea in advance what may happen in the bud­get is better able to plan than one that does not. A good Albany office serves as a source of information for private clients, as well as its legislative and administrative targets. The difference between a professional lobbyist backed by large numbers of Tuesday activists and the go-­it-­alone individual without lobbyists was neatly encapsulated many years ago by the late congressman Clem Miller’s classic tale of the walnut growers and the chicken farmers. In Miller’s story, groups of chicken farmers and walnut growers descended on Congress to explain their dire economic straits. Both made persuasive cases for federal help and aroused considerable feelings of concern. But when the chicken farmers went home, they left the ball in Congress’s court. Far fewer in number, the walnut growers left a professional lobbyist in Washington to follow up, propose a set of specific acts, remind the busy members of their concern with the issue, and make sure that ­things got done. Gradually the members—­busy with other demands on their time—­forgot about the chicken farmers. The lobbyist for the walnut growers constantly nee­ dled and reminded members, keeping the issue alive and getting the clients what they needed.18 One of the lessons of this tale is that lobbying is often less about persuasion—­most legislators pretty much know where they stand on most issues—­than it is about mobilization, about getting them to do more than say nice t­ hings, and most impor­tant about what they do with their time. A number of voluntary associations—­recognizing the importance of such follow-up activities—­hire part-­time lobbyists or have one of their members register with the lobbying commission known as the Joint Committee on Public Ethics ( JCOPE). While part-­time lobbyists are seldom based in Albany, they can help keep the momentum of lobbying alive. A step up from volunteers are professional representatives who represent several clients on a contract basis. Individuals, companies, and law firms—­often including one or more former legislators or staff persons—­are paid on e­ ither an hourly or yearly basis to serve as a group’s eyes and ears in Albany. Sometimes ­these professional representatives ­handle a rich variety of group needs. A lobbyist representing the state’s chiropractors, for example, may lobby on issues concerning chiropractors, or­ga­nize the association’s annual meeting and banquet, collect member dues, maintain the mailing list, and produce a periodic newsletter informing individual chiropractors of new laws and regulations that might affect their lives. The same representative may also be performing similar ser­vices for a variety of other groups, such as funeral homes, window-­covering companies, and exterminators. The advantage of being represented by professionals is quite simply that they are

P OWER , P LURALIS M , P U B LIC O P INION , AND T HE GOV ERN M EN T

111

professionals. As much as such lobbyists may deal with multiple clients, and as l­ittle as they may know about par­tic­u­lar prob­lems, they are generally the most connected individuals in the Albany community, including former aides to the governor, attorney general, the Department of Health, the Speaker, and so on. The largest of t­ hese lobbying firms—­K asirer, Brown & Weinraub, and Bolton–­St. Johns—­may have dozens of clients, though they try to avoid ­those with conflicting interests. As impressive as some of ­these lobbying firms are, many organ­izations prefer to have their own “in-­house” lobbyists. Roughly half of Albany’s registered lobbyists work for a single client, such as a ­labor ­union, business, or professional group, and combine po­liti­cal skills with a more detailed knowledge of the organ­ization’s needs. In smaller groups, t­ hese in-­house lobbyists frequently combine their po­liti­cal responsibilities with community affairs, philanthropy, and public relations. In the case of large corporations such as the Ford Motor Com­pany, Microsoft, and ExxonMobil, t­ hese lobbyists also work with their counter­parts in Washington and other states. For some voluntary organ­izations such as environmental groups and advocates for the poor, the executive director wears a lobbying hat when the legislature is in session and takes it off the rest of the week to focus on fund­rais­ing and other organization-­ building needs. About one-­third of the state’s lobbyists are ideological and good-­government lobbyists of this type. Fi­nally, t­ here are a handful of registered lobbyists who advocate on behalf of local governments and agencies.19 An impor­tant part of the lobbying community consists of representatives from “trade” and “peak” associations. Groups such as the New York Restaurant Association, the Empire State Association of Adult Homes, and the Professional Fire Fighters Association serve the prac­ti­tion­ers of ­these trades in a number of ways. The Restaurant Association, for example, keeps its members informed of changes in tax laws or pandemic rules that might affect their businesses, provides members with signs to comply with a law requiring restaurants to remind their employees to wash their hands, and updates members on new products such as computer programs designed for taverns. It also lobbies on behalf of the industry. Many small businesses rely on such trade associations to keep them informed of new developments and represent their interests, though t­ here is some tendency for trade associations to be dominated by their bigger clients—­for example, McDonald’s and Burger King, in the case of restaurants. Peak associations such as the Business Council and the AFL-­CIO represent a w ­ hole variety of businesses and trade ­unions, large and small. Some very large corporations and peak associations have New York offices that are part of a much larger network of offices in Washington, DC, and other states. Companies such as Anheuser-­Busch and AT&T are registered in almost e­ very

11 2 C h a pt e r  4

state. Many large companies try to cover all the bases, having their own government relations offices in addition to memberships in multiple trade associations. One large insurance com­pany, for example, had its own in-­house office and contributed nearly $6 million to seventeen trade associations.20

Box 4.2 Group Repre­sen­ta­tion in Albany As in most states, lobbyists in New York are required to register. In New York any lobbyist, group, or public corporation that spends more than $5,000 a year attempting to influence legislators, the governor, or a state agency must register with JCOPE. Although the fines for noncompliance (a maximum of $25,000 per offense) are relatively trivial for large interests, no one wants the bad publicity that might accompany failure to report. For a variety of reasons, however, the list of groups and corporations registered with the commission is not particularly representative of the realities of group power. Some of the state’s largest employees e­ ither have no registered lobbyists in Albany or are represented only part-­time by a large firm or trade association. At the other end of the scale are conglomerate enterprises, such as Goldman Sachs, Johnson & Johnson, and Microsoft, that have small operations of their own but work through ­others. Over the years, the champion of reported corporate lobbying groups was prob­ably Phillip Morris, which before it broke up into separate companies included its tobacco, Miller Beer, and Kraft Foods divisions ­under one roof. Philip Morris had its own office, was represented by eight dif­fer­ent professional lobbying groups, and was a member of at least five trade associations that ­were registered to lobby. Spreading the action was undoubtedly a question of image and became a ­factor in the com­pany’s breakup. Touting the health benefits of Kraft Foods products ­under the corporate symbol of a cigarette com­pany was not a good idea. But companies in the tobacco and alcohol business are so frequently threatened by new taxes and regulations that they must have spokespersons and sources of information in Albany. Large conglomerates and trade associations, at the same time, have diverse interests that sometimes conflict with one another, forcing the corporate lobbyists to simply withdraw from the field. To play it safe, most groups that have significant interactions with the government are represented in more than one way.

P OWER , P LURALIS M , P U B LIC O P INION , AND T HE GOV ERN M EN T

113

One reason that many companies supplement their association memberships by engaging a lobbying firm is that the larger associations are often unable to take positions on key issues. The Business Council, for example, cannot comfortably take positions on issues that are impor­tant to members with conflicting interests, such as fossil fuel and wind power companies. Similarly, “cities no longer leave repre­sen­ta­tion to a single municipal association. Their interests are more diverse than formerly, and narrower and narrower groups have formed to represent them.”21 In New York as in Washington, one of the more in­ter­est­ing developments in the interest group arena is the proliferation of intergovernmental lobbying, when groups of officials at one level of government hire representatives to influence officials at another level. Individual cities, counties, the state and city universities, and school boards all maintain Albany offices, as do a wide variety of public officials, such as the State School Superintendents Association.22 According to one count, New York State has more registered lobbyists and more per legislator—­a ratio of twenty-­four to one—­than any other state.23 In part, the reasons are that the state’s registration requirements are high and many large companies are headquartered in New York, but the large number of lobbyists also reflects how intensely competitive the New York lobbying scene is.

Th e Bi a s o f the Pre ssure Sy ste m The list of groups represented in Albany is by no means reflective of the range of interests with po­liti­cal concerns in the state. Some groups, as we have noted, are so unthreatened by government that they have no real need to lobby. And among or­ga­nized groups, the pressure system clearly tilts against the poor. Not only are poor folks, students, welfare recipients, small businesses, and so on likely to have no repre­sen­ta­tion in Albany at all, the representatives they do have are likely to be less skilled, less well paid, and part-­time. While or­ga­nized l­abor advocates for working ­people as a class and teachers’ ­unions work hard to increase funding for education, the core concerns of groups such as ­these focus on their members. “Public interest” groups that address issues such as consumer protection and the environment are growing in number. Often dismissed as “do-­gooders,” they can be effective. Citizen activists are in some areas becoming increasingly sophisticated in professionalizing their operations without losing touch with their members.24 Still, all lobbyists face prob­lems of convincing their clients that what they are d­ oing in Albany is worthwhile; the resource deficits faced by nonprofits are formidable, often forcing their representatives to spend more time wooing their members than lobbying. Thus, as much as the proliferation of ­these

11 4 C h a pt e r  4

groups—­and of or­ga­nized interest groups in general—­has changed the lobbying universe, Schattschneider’s pluralist heaven still sings with an upper-­class bias. Traditional pluralist theory based on membership groups of citizens coming together seeking—in the words of the First Amendment—­“a redress of grievances” has been displaced by experienced professionals ­adept both at lobbying public officials and keeping their employers happy. Their organ­izations, as noted by Theda Skocpol’s felicitous phrase, have become “bodiless heads.”25 The leaders of most lobbying groups view themselves as c­ areer professionals, not as carpenters, teachers, dairy farmers, or doctors. It is precisely b­ ecause ­these leaders are professional lobbyists rather than farmers or workers that they ­were hired in the first place. Their desire to continue in t­hese often well-­paid positions combined with the apathy of their members combines to reinforce what Lowi calls “the iron law of de­cadence.” Increasingly, in e­ very “highly or­ga­ nized ele­ment in modern society, ­there are orga­nizational characteristics that dictate orga­nizational maintenance over ­every other pos­si­ble goal.” In established groups, “the goals of the organ­ization have become intertwined with the needs of maintaining the organ­ization, ­until the two have become indistinguishable and self-­reinforcing.” The growing number of institutional lobbies, ­those that essentially have no “members,” reinforces this tendency.26 While it is true that lobbyists can and often do effectively represent the interests of their clients, and that the chorus of pressure groups is both much larger than it was in 1960 and sings in more accents and keys, the sum of the interests that chorus represents remains l­imited. Large corporations continue to dominate the world of or­ga­nized groups, both as entities on their own and as members of trade associations in which they provide the bulk of the dues. In Washington, “for ­every dollar spent on lobbying by ­labor ­unions and public interest groups together, large corporations and their associations now spend $34.”27 At the same time, lobbying is contextual. Any group seeking government funds ­will find the job much easier in times of prosperity than recession. Business groups quite simply fare better when Republicans are in power. They fare poorly when public opinion is clearly in opposition or when they are actively opposed by other groups. The dynamic of government, moreover, grinds slow with only incremental changes. “If interest group influence is conceived of as yes-no, ­there are ­going to be a lot of nos.”28 So what difference does lobbying make?

In t e r e st G roup s a n d Pol icy Cha nge One way to mea­sure the effectiveness of vari­ous groups is to ask t­ hose close to the government whom they see as most significant. In a pioneering study, Clive Thomas and Ronald Hrebenar used ten f­ actors to rank the forty most influential

P OWER , P LURALIS M , P U B LIC O P INION , AND T HE GOV ERN M EN T

115

interests in the fifty states. Their top five w ­ ere schoolteachers’ organ­izations (which w ­ ere rated “most effective” in forty-­three states), general business organ­ izations (most effective in thirty-­seven), utility companies (twenty-­three), l­ awyers (twenty-­six), and traditional ­labor organ­izations (twenty-­two).29 In the first edition of this book, we asked thirty-­five legislators and staff aides which groups they regarded as highly influential in Albany. A majority of respondents mentioned the United Federation of Teachers and the Business Council. No other group was mentioned by more than three respondents, though most w ­ ere able to offer examples of groups with considerable issue-­specific power, such as gun clubs, public employee u ­ nions, and the insurance industry. Republicans, interestingly, ­were more likely to see u ­ nions as power­ful interests, while Demo­crats ­were similarly more inclined to mention business groups. The most comprehensive study of which groups win and lose examined ninety-­eight issues, comparing the positions of vari­ous or­ga­nized groups and mea­sures of public attitudes on t­ hose same issues. The resources available to individual groups made a significant difference in about 5 ­percent of the cases examined, and when groups scored significant victories, it usually occurred when ­there ­were other forces on their side.30 Uncommon on major issues, ­these victories are not insignificant, given the large and per­sis­tent differences between the concerns of the public and the priorities of lobbyists found in the study, but few special interests are successful when significantly out of step with the general public.31 Both quantitative studies such as t­ hese and more impressionistic accounts agree on two major points. First, lobbyists are most effective when blocking. An old po­liti­cal adage says that any idiot can burn down a barn, but it takes skill and hard work to build one. Putting the pieces together to build a winning po­liti­cal co­ali­tion is far more difficult than finding the weak link in the chain where a policy can be blocked. One author worked with a group seeking a technical but not insignificant change in the funding formula for public schools. Having secured passage in the Assembly, we found a Republican sponsor in the Senate who persuaded a somewhat reluctant majority leader to let it pass his ­house. Our Assembly sponsor, meanwhile, secured support from the governor. Victory— we thought—­was ours. All that remained was for the majority leader to send the bill to the second floor. It never happened. What none of us knew or had ever even heard of was that the majority leader can decide not only when to send an enrolled bill (one that has passed both h ­ ouses) to the governor but ­whether to send it at all. We still do not know who got to the majority leader or ­whether he killed the bill on his own. Second, the most effective lobbying is done on the margins of public policy. If you read about it in the newspapers, it prob­ably is not an issue de­cided

11 6 C h a pt e r  4

by lobbying. ­Every year City & State magazine runs an issue on the fifty most impor­tant interest groups of New York City and State. One question asked ­every year is what each firm regards as its biggest annual achievement. ­Here are some typical responses: “secured enhanced benefits for public employees”; “opened Nordstrom’s East Coast flagship store and two new Target stores”; “renewed the film tax credit”; and “guided our clients through the COVID crisis and applying for emergency relief.”32 From the clients’ perspective, none of ­these achievements was insignificant. Nordstrom and Target might or might not have been able to open ­these key stores without expert help in securing the vari­ous permits, and ­those who made movies in New York saved far more in taxes than they paid their lobbyist. Yet in the ­g rand scheme of state politics, t­hese are surely rather trivial issues? On their own, yes, they are rather trivial, but cumulatively they are not insignificant at all. What if all employees secured the enhanced benefits obtained by one u ­ nion’s members? Or what if all businesses received the same tax treatment as the film industry? As the late Senate Republican leader Everett Dirksen was fond of saying, “a million ­here, a million ­there, and pretty soon ­you’re talking real money.” If Nordstrom and Target need expert help to open new stores, what does a smaller business do? How did businesses manage to navigate the pandemic? While many average Americans believe that interest groups control most decisions, t­ here is no empirical evidence to support this view. Anthony Nownes reminds us, “While government decision makers often do what interest groups want, they do not ignore the views of ordinary Americans.”33 Certainly it is the rare office holder who would heed the siren calls of lobbyists to support programs that are manifestly unpop­u­lar. Nordstrom, Target, and the companies that weathered the COVID crisis with professional help w ­ ere not defying public opinion and w ­ ere prob­ably ­doing what most ordinary citizens would have preferred in bringing new stores to their neighborhoods and helping keep old businesses alive. What most studies of interest groups do not explore, however, are the pressure system’s broader, overall impacts on politics. Most studies of interest groups focus on how lobbying groups secure the passage of bills and appropriations favorable to their clients. ­These legislative acts, however, broadly outline policy, leaving the “details” to administrative rulemaking and language that appears in the bud­get. U ­ nder the state Administrative Procedures Act, state agencies write the details of the act, followed by a sixty-­day win­dow for public commentary. In this pro­cess, the “public” generally connotes the testimony of or­ga­nized groups. Lee Drutman writes that “businesses tend to have a par­tic­u­lar advantage in agency rulemaking. Businesses tend to have the know-­how and resources to provide the detailed analyses that the rule-­ writers want.”34 Journalists and scholars seldom follow ­these arcane path-

P OWER , P LURALIS M , P U B LIC O P INION , AND T HE GOV ERN M EN T

117

Box 4.3  Protesters as Po­liti­cal Players In September 2011, a group of protesters entered Zuccotti Park in lower Manhattan, setting up an encampment for two months before Mayor Michael Bloomberg ordered the New York City Police Department to disband it. The goal of the “Occupy Wall Street” protesters was to raise awareness about the concentration of wealth, illustrating how 1 ­percent of the population controlled most of the nation’s wealth. The exact number of protesters involved in Occupy Wall Street is difficult to determine. One participant suggested that the a­ ctual number of protesters might have totaled three hundred thousand as the movement spread throughout the United States, its message resonating particularly among millennials.35 Unlike traditional interest groups, the Occupy Wall Street protesters eschewed both formal organ­ization and concrete po­liti­cal agendas. “Occupy” may not have lasted long but it clearly opened a policy win­dow for progressive policy entrepreneurs and insurgent Demo­cratic candidates. Black Lives ­Matter (BLM) similarly eschewed direct po­liti­cal involvement in f­ avor of elevating attention to racial injustices. Formed in 2013 in response to a host of police shootings and brutality, the movement gathered momentum nationally. In New York City, the chokehold killing of Eric Garner by a police officer on Staten Island furthered participation in the movement. While efforts to “defund the police” have been met with re­sis­tance, BLM has raised considerable awareness about police practices, criminal procedures, bail, and incarceration. Among other direct protest actions, activists have or­ga­nized mass marches and blocked streets and highways across the nation, inspiring debate and a patchwork of reforms, including bail reform in New York State. In response to the murder of George Floyd by a police officer, along with other victims, the movement accelerated despite the pandemic. By pressing its demands for racial justice and equity, BLM clearly influenced policy conversations in legislative bodies throughout the United States.36 Like the conservative Tea Party movement that preceded t­ hese movements, neither Occupy Wall Street nor BLM ever developed identifiable formal organ­izations. Unlike the Tea Party, the two more recent movements also avoided roles as insurgent factions in electoral politics.37 They demonstrated how activists can play a role in po­liti­cal debates without the kinds of formal organ­izations often associated with more traditional pressure groups discussed in this chapter and that they can have significant electoral impacts without direct involvement in campaigns. ­These

11 8 C h a pt e r  4

movements work both by “drawing voters’ attention to salient issues” and by signaling “to potential challenger candidates that the timing is right to enter a race.”38 Indeed, it may well be that the “bottom-up approach of receiving information can be more influential to citizens than the views that come from po­liti­cal elites.”39 The risks attendant to protest politics are substantial. Even as ­these actions mobilize some voters, they can antagonize o ­ thers. Particularly among more moderate Demo­crats, ­there is a strong feeling that the progressive agenda of Occupy Wall Street and its allies, along with the “identity politics” integral to BLM, hurts the party’s ability to win elections. Protest activities—­particularly ­those in public spaces that limit access or result in property damage—­extract a price in the market of public opinion, raising impor­tant and relatively new issues about the acceptable range of activities and the uses of both public and private space.40

ways, and few ordinary citizens are even aware of them. The power of pressure groups in shaping t­ hese rules is marginal in any given case and seldom has a major impact on public policy. Still, the cumulative impact of a thousand tiny cuts can be as fatal as a single major wound.

­To wa r d a n In te re st Group So ciety The distinction between microanalysis and macroanalysis underlines the true paradox of pressure politics. At almost no single point in time, on almost no major issue do we see or­ga­nized interests significantly changing the direction of public policy. Yet the rise of an interest group society has profoundly shifted the dynamics of both state and national po­liti­cal power. Of the five forces discussed in this chapter—­elites, pluralists, interest groups, elections, and public opinion—it is interest groups who have most increased their influence. Once upon a time, lobbyists gathered in capitol lobbies to talk with legislators and other policymakers—­lobbying. Sometimes they filed comments on proposed administrative rules, and they kept their clients informed on what was g­ oing on, but they left amicus curiae (friend of the court) briefs to corporate ­lawyers, public relations campaigns to publicity departments, and campaign contributions to individual corporate officials. Perhaps the first major change in the role of lobbyists came in the mid to late twentieth c­ entury when groups discovered the effectiveness of what became known as “grassroots lobbying.” ­Here the idea was simply to reinforce

P OWER , P LURALIS M , P U B LIC O P INION , AND T HE GOV ERN M EN T

119

the work of lobbyists in the capitol by bombarding policymakers with supposedly spontaneous communications from their constituents. In the early 2000s, one report found that the members of the US House and Senate received more than 200 million communications a year, a staggering 370,000 (more than a thousand a day) per member.41 The number is considerably lower in the states, but one state senator in 2016 reported receiving approximately three hundred emails each day the legislature was in session.42 Other forms of indirect lobbying have proliferated. Looking specifically at the states, one study reported that in 80 ­percent of the campaigns, 40 ­percent of constituent communications ­were inspired by radio or TV shows and 31 ­percent from advertisements in other media.43 For many years, privately funded research organ­izations sponsored scholarly research proj­ects that influenced public policy. Lobbyists often have used academic studies to back their positions. Major po­liti­cal interest groups increasingly have used ­these essential models to fund less objective but generally respectable research reports. The largest of ­these in New York is the more than forty-­year old Manhattan Institute. The Institute which has forty-­five resident experts and its own quarterly journal, which has all the trappings of a peer-­reviewed scientific journal. Far smaller institutes and foundations—­some narrowly focused on a par­tic­u­lar set of issues, o ­ thers more liberal such as the union-­backed Fiscal Policy Institute—­ also offer scholarly studies of varying quality. As in the lobbying community, the bulk of ­these institutes have corporate or conservative backing. According to Drutman, “often the intellectual environment is overwhelmingly on one side of the issue, but is sparse on the other side of the issue. When this happens it is very hard for decision makers not to be swayed.”44 One of the few serious attempts to weigh the impact of think tanks emphasizes their ability to give greater credence to the arguments of corporate lobbyists. “If businesses can shape public opinion, especially p­ eople’s broad public preferences on the proper role of government in society, then gaining favorable legislation from public officials becomes much easier.”45 In general, the growing sophistication of interest groups has made the po­liti­ cal system more corporatist, if not conservative. Good lobbyists do not come cheap. When more affluent groups hire, they are buying talent that is being taken from or not g­ oing to someone e­ lse. In the annual survey of New York’s top lobbyists that appears in City & State, the vast majority hail from state government backgrounds as legislative aides, agency officials, or staff assistants to the governor. ­Whether by law (as in New York) or tradition, most states cap the pay of legislative staff below that of members. Civil ser­vice salaries also are relatively low compared with t­ hose in the private sector. It is not uncommon for

12 0 C h a pt e r  4

individuals moving from public ser­vice to private sector advocacy jobs to more than double their salaries. The brain drain resulting from more se­nior public servants moving to the private sector—to lobbying organ­izations as well as think tanks—is a continuous pro­cess that makes the ju­nior staff persons in the legislature and bureaucracy increasingly more dependent on their more experienced private sector counter­parts.

Government Institutions Some of the most fruitful work of lobbyists is accomplished through their frequent interactions with similarly focused government agencies. State law often requires government agencies to seek public comments before they can issue new regulations. ­Because they “tend to have know-­how and resources to provide the detailed analyses that the rule-­writers want . . . ​businesses tend to have a par­tic­u­lar advantage in agency rulemaking.”46 Sometimes t­here are private interests that are less interest groups trying to influence governments than adjuncts to governments. The number of nongovernmental organ­izations that make decisions that “are authoritative, . . . ​affect a broader public beyond the group’s members, and . . . ​have a substantial impact” is high and growing.47 The American Medical Association and its state affiliates, for example, have long de­ cided what medical schools must do to be accredited and what their gradu­ates must do legally to practice medicine. State bar associations generally do the same for ­lawyers, and numerous other professions are gaining licensing controls. Similarly, the regulation of many aspects of the economy is accomplished less by government than by industry boards, such as the Financial Industry Regulatory Authority and the Safe Quality Food Institute, that set industry standards. ­These essentially private rules are significant ­because they are backed by the authority of the state. Practice law or medicine without a license and you can go to jail; import sick chickens and the State Quality Food ­people ­will report you to customs officials, who w ­ ill deny your permit. In this sense, the state governs only in the formal sense of enforcing the decisions actually made by private actors. Students of urban politics have given more attention to t­ hese symbiotic relations between bureaucratic experts and nongovernmental powers in part ­because private interests frequently do play more vis­i­ble roles in local as opposed to state politics. ­There are lots of com­pany towns but few com­pany states. T ­ hose concerned about what t­ hese alliances mean for the rule of law are appropriately concerned about what broad del­e­ga­tions of power to both public and private agencies imply.

P OWER , P LURALIS M , P U B LIC O P INION , AND T HE GOV ERN M EN T

121

Elections, Parties, and Public Opinion In his discussion of agenda setting, John Kingdon describes how issues move on or off the po­liti­cal agenda only when prob­lems, politics, and policy streams coalesce. “If impor­tant ­people look around and find that all of the interest groups and other or­ga­nized interests point them in the same direction, the entire environment provides them with a power­ful impetus to move in that direction.”48 If ­there is conflict in the environment, conversely, t­here is almost invariably a reluctance to act. On major issues, New York’s system of divided government almost invariably trapped some organ­izations into alliances leading to blended policy streams. In close alliance with the Demo­cratic Party, or­ga­nized ­labor seeks to improve worker safety and raise the minimum wage. For an Assembly with a Demo­cratic majority, the streams merged together, enabling members to vote for what they thought was good public policy, to vote with ­labor, and to vote with their party. In contrast, u ­ nder Governor Pataki, not only ­were the policy streams not converging, but the ­unions became embroiled in conflicts with their usual allies. By incorporating ­labor issues into the bud­get, the Republicans held other groups hostage, making negotiations more challenging. Teachers wanted more funding for schools, and advocates for the poor wanted more funding for social welfare, yet they had to deal with the Republicans even if it meant letting ­labor go it alone on this issue. Hoping to encourage the Assembly Demo­cratic leadership to make a deal with the governor, ­labor could only win by abandoning its traditional allies. Much the same has happened to many business and professional groups since the Demo­cratic takeover of the Senate in 2018. Republican “legislative candidates are not raising money or getting endorsements like they used to from longtime po­liti­cal allies like the real estate industry, who are ­either keeping a low profile in legislative races or trying to ingratiate themselves with the party in power.”49 ­After de­cades of unusual stability, the relative weight of key players in New York politics is shifting in the wake of the Demo­cratic surge. The change in one part of the policy stream necessarily affects all the o ­ thers. Power ­will flow through the same channels of public opinion and elections, elite preferences, interest groups, and government agencies, but the relative currents and velocities ­will be unusually unstable in the foreseeable ­future. The closeness of many of the races won by Demo­crats in recent elections, combined with the uncertainties that always follow reapportionment, mean that electoral politics continue to m ­ atter and that New York is not necessarily a one-­party state. What is equally clear is that the policy environment in Albany has changed in ways that significantly affect all participants.

12 2 C h a pt e r  4

Cam pa i g n Fi na n ce For many organ­izations, campaign giving is power-­tropic. When Demo­crats firmly controlled the Assembly, sometimes shared power in the Senate, and occupied the governor’s mansion, they consistently received two dollars for ­every one collected by Republicans.50 When Republican governor George Pataki was in office and Republicans controlled the Senate, the playing field was more balanced. If history serves as a guide, most interest groups in New York ­will adjust to increasing Demo­cratic control both by better balancing their campaign contributions and supplementing existing lobbying arrangements. At the national level, for example, when Demo­crats took control of Congress in 2007, many trade associations added Demo­cratic con­sul­tants and staff members to their existing teams.51 We can expect the lobbying community in Albany to make similar adjustments. ­Because groups such as ­labor and ­those representing minorities are no longer locked into a two-­pronged strategy of dealing with the Assembly and Senate, their bargaining postures w ­ ill change and focus increasingly on new initiatives, at the same time as the business community w ­ ill adjust to a more defensive posture. New York’s campaign finance laws are less restrictive than ­those of the federal government and most other states. Candidates for state office in both primary and general elections must file detailed reports with the Board of Elections listing all contributions of $100 or more. The maximum amount a single f­amily could donate to a statewide candidate is pegged at .025 cents per voter, or $294,598 in 2020. In the legislature—­because the formula is based on the number of voters per district—­Democratic primary election candidates for the Assembly in 2020 could accept anywhere from just ­under $12,000 per ­family to more than $26,000; Republicans with fewer registered voters could accept considerably less. Comparable overall spending caps in the larger Senate districts w ­ ere higher for both parties. In general election contests—­again using the formula based on the number of registered voters per district—­the maximum allowed ranged from roughly $34,000–­$57,000 in Senate races and $13,000–­$25,000 for the Assembly. Each donor must be clearly identified in reports filed regularly during the campaign with the Board of Elections. Once notoriously lax, the state’s reporting requirements have improved in the past few years, but its caps on spending are still the highest in the country.52 One of the first acts of the new legislature in 2019 was to reform the campaign finance law with par­tic­u­lar emphasis on the state’s incredibly loose laws regarding a certain form of l­imited liability corporation (LLC). Long a target of reformers, LLCs ­were often able to bypass reporting requirements for both individual and corporate contributors to evade overall spending limits. The

P OWER , P LURALIS M , P U B LIC O P INION , AND T HE GOV ERN M EN T

123

revised law requires the same reporting standards for regular and LLC donations and caps the total amount an individual can give to the combined numbers of both accounts. The 2019 law also established a system of public financing similar to that previously a­ dopted for local offices in New York City that offers candidates six dollars in public matching funds for e­ very dollar raised from small contributions. The new law, however, created a legally dubious commission to fill in the details of the program for implementation in 2022, while the 2020 bud­get included no funds for its operation. The fight to complete the program and to further limit LLCs ­will persist.53

Re a l Mon ey a n d Re p o rte d Mon ey To say that t­here are loopholes in New York’s campaign finance laws is like saying ­there are holes in Swiss cheese. The so-­called soft money scandals that have attracted media attention in the wake of recent presidential campaigns are more than matched by the less closely followed evasions of campaign finance rules practiced in New York. ­Until very recently, reporting requirements ­were easily evaded, and both individual and group contributions could be made almost impossible to trace. Although most filings in New York are now computerized, the paper trails of some campaigns are at best confusing. One list produced by the Pataki for Governor Committee was alphabetized by first names instead of last. Candidates sometimes, quite legally, file reports ­under two or more dif­fer­ent orga­nizational names (a practice facilitated by third-­party cross-­endorsements). So-­called in-­k ind contributions—­for example, ­union donations of phone banks—­have not been effectively audited or regulated in New York. Incumbents in the legislature have access to very sophisticated maps of their districts. While technically they are available to the public, few ­people even know they exist. Employees of the legislature, though increasingly scrupulous about d­ oing so in their spare time or on leaves of absence, regularly work actively in campaigns.

The Media in New York State The media in many senses provide the links that tie t­ hese forces together. Many lobbyists are in frequent contact with a handful of legislators and other government officials, and some voters enjoy personal contacts with officeholders, yet almost every­one ­else in New York learns what is ­going on—­whether directly or indirectly—­through the press. “The news media . . . ​is an integral part of the calculus by which decisions are made and actions are taken by state

12 4 C h a pt e r  4

public officials and other po­liti­cal actors.”54 Currently ­there appear to be fifty-­ two daily newspapers in New York in 2020, a decline from fifty-­five in 2010.55 In addition, t­here are hundreds of weeklies, monthly magazines, blogs, and online news ser­vices combined with roughly eighty tele­vi­sion stations and upward of five hundred radio outlets in the state. The press office on the third floor of the capitol has lost journalists tied to mainstream media, but they have been replaced with a variety of online ser­vices such as the New York versions of Politico, City & State, and Statewatch. The number of media outlets represented ­there has remained steady at just more than forty. An overwhelming number of the New York’s news outlets obtain their Albany news ­either from ­these few sources or from the press offices of politicians and interest groups. Even among state­house reporters, ­there is widespread agreement that state politics are not well covered. ­Because so much of what happens in New York’s legislature goes through the party leaders, it requires fewer interviews to get the story. In contrast, where policymaking power is more dispersed, more legwork is needed. Still, ­there is ­little doubt that governors tend to dominate when it comes to coverage. Rank-­and-­file legislators—­especially from the city—­find it almost impossible to get their stories into the press, although social media have functioned as a good work-­around. The media, moreover, tend to ­favor the kinds of stories that have a unique twist rather than t­hose reflecting the kind of hard work and per­sis­tence that gets ­things done. Even for the governor, however, ­there are reasons to be frustrated by the inability to break into media coverage. ­There are just too many news items competing for attention in New York, particularly in New York City, where the government is as large as that of most states and politicians compete with Albany for ink alongside Wall Street, the arts and theater, and neighboring states. ­There are enormous variations among the vari­ous media and their coverage of state politics. Outside of the Capital District, tele­vi­sion almost never offers direct coverage. For stations in New York City, Syracuse, and Buffalo, it takes a full working day for a news and camera crew to set up in Albany. Quite sensibly, producers send a crew only when ­there is some certainty that a newsworthy event ­will take place, such as the governor’s state of the state address, a major protest, or final passage of the bud­get. Newspapers vary in both the amount and kind of coverage they give state issues. In a study from the late 1970s, the percentage of news space allocated to state as opposed to local, national, and international affairs ranged from a high of 52 ­percent in the Albany Times Union to a low of 12 ­percent in the New York Times, numbers that continue to make sense.56 For the Times Union or the cable news channel in Albany, state government is in a sense local news. The New York Times—­with a national audience and a tendency to view itself as the

P OWER , P LURALIS M , P U B LIC O P INION , AND T HE GOV ERN M EN T

125

newspaper of rec­ord—­weighs state issues against national and international events that tend to receive only cursory coverage in papers such as the Times Union. Most other media—­newspaper, tele­vi­sion, and radio—­that cover state politics primarily address the impact on localities. Online sites largely serve specialized audiences, such as local politicians, academics, p­ eople who do business with the state, and lobbyists. As for the tabloids, as one reporter said, “if it ­doesn’t involve sex or the lottery we ­don’t print it.” The closed nature of the po­liti­cal pro­cess in Albany is a source of frustration for journalists. Most of the impor­tant aspects of the lawmaking pro­cess are folded into secret negotiations between legislative leaders and the governor. ­Because party discipline is strong, reporters generally cannot stir up a story—as they might in Washington—by g­ oing to a disgruntled member of the Speaker’s party or a bureaucrat trying to protect an agency from rumored cuts. Few even try. As for the chief executive, he is almost fully in control of how and when reporters ­will be seen. George Pataki allowed only ­those on his staff access to the second floor, limiting elevator access. During Andrew Cuomo’s third term, when a variety of scandals mounted, he simply s­ topped answering questions from anyone in the media. As with more than one of his pre­de­ces­sors, Cuomo was accused of playing favorites, answering questions only from t­ hose he liked.

Managing the News Politicians and journalists need each other in such dif­fer­ent ways that conflict is inevitable.57 For ­every incident in which politicians rebuff reporters, ­there are prob­ably twenty in which politicians seek out reporters. Interest groups, too, spend many days trying to get their perspectives reported. ­Every day the legislature is in session, ­there is a ­table in the Legislative Correspondents Association capitol office stacked with press releases from private groups, legislators, and other government agencies. Many w ­ ill never be picked up, and most w ­ ill be picked up only by a select few. Actions affecting the Erie Canal or the Adirondacks that get front-­page treatment upstate may be ignored downstate. Changes in the Off-­Track Betting Corporation that make the front page of the Daily News may be ignored by the New York Times. It is in this filtering pro­cess, in which editors decide which stories to broadcast or print, that conflicts result. ­Those pushing their narratives—be they governors or private groups—­want to see their stories in the news. “Getting your argument in the right paper,” as one lobbyist recounted, “is like home delivery, you put it right in the hands of the ­people you want to see it.” ­There is, moreover, a certain sense in which something that appears in the media is more authoritative than the same idea

12 6 C h a pt e r  4

conveyed in an advertisement or politician’s speech. Good press also is good politics. With his daily press and seemingly frank press conferences on the pandemic contrasting sharply with the federal government’s blundering approach, Andrew Cuomo became something of media star in 2020. “In Coronavirus Response, Andrew Cuomo Wins Over Past Critics,” read a March 19 Wall Street Journal headline, one of a growing set of news stories praising Cuomo’s actions during the crisis. Cuomo was “experiencing a reputational re­ nais­sance rivaling Rudy Giuliani’s a­ fter Sept. 11,” Politico reported a few days ­later. The New York Times media columnist Ben Smith declared the control freak “best suited for the coronavirus crisis.”58 Cuomo’s poll ratings climbed to over 70 ­percent, but high visibility is a double-­edged sword. When the media discovered some of the governor’s numbers ­were altered, obscuring the number of nursing home fatalities, the governor’s popularity plunged, and he went into hiding, refusing to take any questions. Worse than just losing his audience was that a once friendly press turned hostile. It worsened still once sexual harassment findings ­were released, driving his standing even lower. ­There is perhaps nothing worse, from a journalistic perspective, than being lured into publishing something that turns out not to be true. To admit to having been duped is almost worse than having simply been wrong, and a reporter once burned is ­going to be very skeptical the next time. When a planted story is true, conversely, the source gains credibility, particularly if one reporter gets the story as an exclusive. Through a long series of such transactions, politicians and journalists develop patterns of interaction that generally serve the public well by bringing impor­tant, po­liti­cally sensitive issues to light. In the final analy­sis, the most impor­tant fact about the media is their ability to mediate between citizens, politicians, and power wielders, communicating facts, hearsay, opinions, and attitudes. The media link citizens with policymakers and policymakers with one another. A legislator’s press release to local media reaches most of the key decision makers in the area. An article in the Times Union is likely to be read by most key decision makers when the legislature is in session. When Donald Trump was in the White House, Governor Cuomo found it impossible to engage in “traditional discussion and negotiation. . . . ​So if the best way to communicate with the federal government was through the media, I would do just that.”59 Despite complaints from almost every­one involved in politics about alleged media bias, the more serious prob­lem is with an understandable but harmful tendency to provide a realistic look at how the system works. By focusing on the unusual—­exposés of overpaid or corrupt legislators, backroom deals, or inflated pork barrels instead of stories about how policy is routinely crafted—

P OWER , P LURALIS M , P U B LIC O P INION , AND T HE GOV ERN M EN T

127

”journalists have misled us with a myth. They have failed to explain how the legislative pro­cess works and why decisions are so difficult to reach.”60 Like a medical school that focused exclusively on pathologies and ignored the basics of anatomy, “they have failed to communicate how democracy works.”61 With a decline in the resources of the mainstream media, leaving fewer and fewer reporters to cover the kinds of in-­depth stories that illuminate issues, impor­ tant backwaters of the system rarely are explored. New media has filled some gaps in the mainstream media, but certainly not all. A cursory examination quickly yields a rich array of established sites, but the distinction between ­these sources and the mainstream media is blurred. The state politics reporters from the Albany Times Union not only write for the paper but also maintain the newspaper’s blog, Capitol Confidential. A 2020 Google search for blogs on New York State politics illustrates how new media and the mainstream media are often conjoined. Eliminating duplications and references to out-­of-­state mentions, only nine of sixty-­seven blogs are not affiliated with the mainstream media. Twenty-­one blogs are associated with magazines and newspapers such as the Times Union and Crains Business; sixteen with cable or local tele­vi­sion stations; seven with interest groups or trade associations; and a scattering of sites with po­liti­cal parties, individual politicians, government agencies, or universities. The use of social media has become an increasingly popu­lar way of communicating, with 69 ­percent of adults in the United States reporting using Facebook, 37  ­percent Instagram, and 22  ­percent Twitter.62 In fact, more than 80 ­percent of Americans obtain news from digital devices such as smartphones or tablets, edging out the 68 ­percent of respondents who get news from tele­vi­sion.63 Greater use of new media by elected and appointed officials is now commonplace. Former president Trump’s—­affectionately known as the Tweeter-­in-­Chief—­frequent tweets enabled him to bypass the mainstream media to communicate directly with the general populace. Many other po­liti­cal leaders and parties in the United States also use Twitter to reach their constituents, while Generation Z has successfully used TikTok to or­ga­nize po­liti­ cally.64 During the pandemic, Governor Cuomo tweeted regularly encouraging Empire State residents to stay masked and distanced. Similarly, state agencies used social media to raise awareness or inform the public, and nonprofit organ­ izations used new media to “lobby for legislation, build co­ali­tions, educate the public, and provide awareness to the community.”65 Private groups such as BlackLivesMatter and #MeToo also have mobilized supporters particularly well. Still, rather than informing public opinion and increasing our understanding of politics, the media divide us into silos of the like-­minded, creating echo

12 8 C h a pt e r  4

chambers in which our own ideas and views are supported. The instantaneous nature of social media often makes stories less analytical and substantive, potentially turning the reporter into a “stenographer, no filter, no correction.”66

Politics and the Power Structure ­ rand theories of politics generally distort more than they reveal. The early G pluralists made an impor­tant contribution to the study of politics both by underscoring the importance of interest groups and showing how electoral politics and the politics of governing ­were not one and the same. Elite theorists documented the influence of some interests so central to the state that group interests and electoral politics are irrelevant on some issues. Certainly decisions are made by bureaucrats and experts with ­little or no popu­lar input. Fi­nally, the weight of public opinion influences how ­people vote and how public policies are crafted, as illustrated by gay rights issues. It is worth noting that ­these spheres of influence are all interrelated. Changes in voting affect interest groups, which in turn impact the bureaucracy, and so on. Demo­cratic victories in the 2018 and 2020 resonated loudly among Albany lobbyists. Interest groups that “should”—in ideological terms—­have supported Republicans found it easier and more con­ve­nient to make peace with moderate Demo­crats, spreading their campaign contributions to both parties and in some instances adding Demo­crats to their payrolls. When Senate Demo­crats came to power in 2018, they assumed committee chairmanships, changing the locus of communications with interest groups and executive agencies. Despite the complexity of forces, however, what is perhaps most remarkable about politics in New York is continuity. The election of 2018 resulted in a historic upheaval to lawmaking and governing, and it produced significant changes in public policy. Despite its critical nature, the under­lying context within which politics occurs remains remarkably constant. The state’s system of taxation remains far less progressive than it was u ­ nder Governor Carey forty years ­earlier. The school funding formula ruled unconstitutional in 2003 remains partly in place. Although they ­were forced to respond to dif­fer­ent circumstances, virtually all of the legislators and bureaucrats who went to work in Albany in 2019, 2020, and 2021 w ­ ere the same p­ eople who ­were t­here in 2018. The same lobbyists with many of the same resources and concerns came knocking at the same doors. And despite the major disruptions in everyday life deriving from the pandemic, the tale of two states we first described in the 2000 edition of this book has not changed substantially.

P OWER , P LURALIS M , P U B LIC O P INION , AND T HE GOV ERN M EN T

129

Most democracies—­and New York is not exceptional—­are built on systems of checks and balances that are both institutional and po­liti­cal. In US history, James Madison most eloquently expressed the po­liti­cal theory under­lying ­these related systems for restraining what he called “the mischief of faction.”67 The primary prob­lem, according to Madison, was how to prevent any one group of citizens (or faction) from “acting adversely to the rights of other citizens or to the permanent and aggregate interests of the community.”68 The worst-­case scenario, from this perspective, occurs when a small minority (a power elite) creates a tyrannical state that rules in its own interests. Madison was equally concerned with what he called a “tyranny of the majority,” a demo­cratically elected government equally willing to deny the rights of ­others. This kind of tyranny, according to Madison, was less likely to form with larger and more diverse populations. “Extend the sphere, and you take in a greater variety of parties and interests; you w ­ ill make it less probable that a majority of the w ­ hole w ­ ill have common motive to invade the rights of ­others; or if such common motive exists, it w ­ ill be more difficult . . . ​to act in unison.”69 The system in con­temporary terms is too pluralistic, too multifaceted for any one constellation of forces to control. While ­these checks on power can lead to deadlock and delay, what the state loses in efficiency it gains in freedom. The shifting co­ali­tions we have described in this chapter provide the checks that keep them in balance. Madison also insisted on “auxiliary precautions,” institutional checks on government in the event that ­these social checks and balances failed. An institutional separation of powers consecrated in a written constitution would give executives, legislators, and judges both the means and motives to restrain one another. The New York Constitution—­the subject of chapter 5—is founded in this princi­ple. As Robert Dahl asserts, “The Madisonian argument exaggerates the importance, in preventing tyranny, of specified checks to governmental officials; it underestimates the importance of the inherent social checks and balances existing in e­very pluralistic society. Without t­hese social checks and balances, it is doubtful that the intragovernmental checks would in fact operate to prevent tyranny.”70 What the constitution does do, which should not be underestimated in its importance, is to structure and channel the directions in which social pluralism works. The two most disruptive ­factors in con­temporary New York politics stem from shifting patterns of national politics and the long-­term social and economic consequences of COVID-19. Nationally, the strong impact of Donald Trump on the Republican Party has a fainter echo in New York than other states, but it continues to disrupt electoral fortunes, despite successes of progressives among the Demo­crats. Looming, however, are the huge changes in

13 0 C h a pt e r  4

state and local revenues and needs of a state already burdened with heavy debt. If the basic ele­ments of the streams of power outlined herein are relatively constant, economic and po­liti­cal changes of this magnitude and the contexts within which they operate create an opening for dif­fer­ent dynamics in state politics. Before exploring t­ hese dynamics, however, it is impor­tant to understand the constitutional and l­egal structures within which t­ hese strug­gles for power occur. The Madisonian system of checks and balances has been so refined, elaborated, and convoluted in New York State that even the most dramatic of po­liti­cal changes can be slow to transform the system. In politics as in sports, the strengths and weaknesses of the dif­fer­ent teams are impor­tant, but so are the rules of the game.

C h a p te r   5

New York’s Living Constitution, and Beyond

The constitution of a state or nation is usually described as the fundamental document that defines the structure of government and the extent of its powers. In the narrow sense, the constitution is a text—­a folio of parchment or paper signed by appropriate dignitaries and ratified by some proportion of the populace—­that guides succeeding generations of public officials. The “true” constitution of a po­liti­cal system, however, is seldom described simply by a text. It is instead a body of traditions, statutes, local laws, judicial opinions, and related texts that si­mul­ta­neously reinforce, supplement, constrict, and sometimes even nullify the basic text of the constitution. This is especially true in an active and complicated state such as New York, in which a host of extraconstitutional realities play out in its politics and policy. For voting, the New York Constitution sets the voting age at twenty-­one, mandates literacy in En­glish, and requires ninety days of residence in the state. In a­ ctual practice, the voting age is eigh­teen, ­there is no literacy test, and the required period of residence is thirty days. Federal laws that mandate ­these requirements have not changed the text of the New York Constitution but have superseded it. Thus eighteen-­year-­old New Yorkers vote despite the constitutional text, which states that they cannot, b­ ecause federal law supersedes this provision. In a related vein, the state constitution mandates a balanced bud­get. But while the state’s highest court has recognized the obligation this imposes on 131

13 2 C h a pt e r  5

the governor “to propose a balanced bud­get . . . ​at no time has the Court suggested that, once a plan is enacted, revenues and expenditures must match throughout the fiscal year. . . . ​­There must in ­every year be ­either a deficit or surplus.”1 Although the text of the constitution appears to mandate a balanced bud­get, economic realities, and the state’s highest court have coconspired to loosen the inflexible language of the formal document. The formal organ­ ization of the government of New York begins with a text but also draws on established customs, laws, and po­liti­cal realities.

New York’s Constitutional Tradition The Constitution of the United States is about eight thousand words, while other state constitutions—­save that of Vermont—­are more verbose. New York’s, at more than forty-­seven thousand words, is a l­ittle above the national average and includes such trivial details as the width of trails in the Adirondacks. Changes in policy that could other­wise be made by statute require constitutional amendments in states such as New York, where state constitutions are detailed. According to one source, the fifty states “have had 146 constitutions, for an average of nearly three per state.”2 Since its colonial charter was replaced by the constitution of 1777, New York has a­ dopted three new texts, in 1822, 1846, and 1894. And the state held five additional constitutional conventions in 1801, 1867, 1915, 1938, and 1967; ­these changes w ­ ere not a­ dopted by the voters but frequently resulted in significant amendments. The prevailing text of 1894 has been formally amended more than two hundred times.3 In 1777, when it became likely that the colonies might win in­de­pen­dence, the need for a new constitution could not be ignored. Some states—­most notably Connecticut—­negotiated charters so tilted t­ oward self-­government that few or no changes w ­ ere needed to adapt them to the needs of a sovereign polity. New York was at the other extreme. Although many of the traditions, institutions, and so­cio­log ­i­cal ­factors favoring self-­government ­were firmly established—­especially at the local level—­there was no text or constitution worthy of an in­de­pen­dent state. At once a war­time legislature and a constitutional convention, the “Convention of Representatives of the State of New York” convened in White Plains on July 10, 1776. That it took nearly a year to produce a text is not surprising, ­because British troops controlled New York City, and the convention was forced to move north up the Hudson River to Kingston to keep ahead of the advancing British army. Compared with the constitutions of the other twelve rebellious colonies, the 1777 New York Constitution was among the most con-

N e w Yo r k ’ s L i v i n g Co n s t i t u t i o n , a n d B e yo n d

133

servative. It had no separate bill of rights, and the few rights specifically enunciated, such as trial by jury, w ­ ere well established in common law. Even by the standards of the day, the franchise was l­imited, with only white male property ­owners allowed to vote. And at a time of rebellion against the Crown—­ when executive power was generally suspect—­New York was alone among the thirteen original states in creating a strong office of governor. Unlike the constitutions of the New E ­ ngland states, moreover, the original New York Constitution gave relatively trivial powers to local governments and made most local officials appointees of the governor. If the structure created in 1777 both reflected and extended the powers of New York’s landholding elite, the rise of po­liti­cal parties in the 1790s—­ particularly the somewhat more demo­cratic Jeffersonian faction—­made unworkable many of the gentlemen’s agreements that structure embodied. In 1801, a series of deadlocks between the Federalists and Jeffersonians over the relative roles of the governor, legislature, and a long-­forgotten body called the council of appointment resulted in the call for a new convention. With the legislature that called the convention dominated by Jeffersonians, the successful referendum that authorized the convention was based on universal male suffrage. Despite its demo­cratic origins, the body was not particularly bold. A ­ fter weeks of rather aimless debate, the convention resolved the two main issues it was convened to deal with—­reapportionment and the role of the council of appointment—­and then adjourned.

Nineteenth-­Century Roots of the Modern System The question ­whether or not to have another, less narrowly focused convention was put on the ballot in 1820 and passed by a vote of 103,396 to 34,901. Reflecting the restricted suffrage laws, the vote represented roughly 10 ­percent of the state’s population. Still, the 1821 convention marked the full emergence of the state from its colonial heritage.4 A clearly defined separation of powers between legislative, executive, and judicial powers was delineated, and the convention a­ dopted a bill of rights, nearly doubled the eligible electorate, and made thousands of local offices elective. Although New York did not go as far as some states in expanding the suffrage or increasing the power of the legislature, by comparison with the document it replaced, the constitution was a reasonably demo­cratic one. Numerous checks on popu­lar sovereignty, including a still very l­imited electorate, are found throughout. But what is more significant, according to Peter Galie, “is the extent to which the 1821 Constitution was modeled on the United States Constitution in both its structure and its essential theory.”5

13 4 C h a pt e r  5

Box 5.1 New York’s Landed Aristocracy Unlike the New ­England colonies, settled largely by corporations and religious dissidents, New York inherited and built on the Dutch patroon system, in which an aristocracy of large landholders dominated both the economy and the government. Although many of the freeholders on Long Island and what is now Westchester had established New E ­ ngland–­like self-­ governing villages, most of the colony’s rural inhabitants worked as tenant farmers. When the British ousted the Dutch from New Amsterdam, “New York was a colony of conquest; to the victor went the right to establish po­liti­cal ground rules.”6 New York’s seventeenth-­century royal governors recognized and extended the patroon rights of the wealthy and took some for themselves. Governor Thomas Dongan, appointed in 1683, added a total land area larger than Manhattan to the existing manors of the Van Rensselaers in what is now Columbia County and the Van Cortlands in the Bronx. He also added 250,000 acres to Livingston Manor and established new f­amily estates in what became known as Pelham Manor, Cassilton Manor, Lloyd’s Neck, and Dongan Hills. Dongan and his successors did concede such basic En­glish rights as jury t­rials to the colonists, and representative assemblies continued to meet in many towns, but the manors of the Livingstons, Van Rensselaers, and Schuylers ­were essentially medieval fiefdoms “over which their ‘lords’ received quasi-­feudal l­egal and governmental powers subject only to the authority of the governor.”7 The men (no w ­ omen allowed) who drafted New York’s first constitution ­were anything but a representative cross section of the population. The convention essentially convened ­those wealthy landowners who supported the cause of in­de­pen­dence, and the document they drafted, “though remarkably progressive in extending the suffrage, guaranteeing basic civil rights, and separating church and state,” was deliberately protective of their interests. Only the wealthiest landowners, for example, could vote for governor. The powers of the more demo­cratically elected State Assembly w ­ ere further checked by a Senate, a council of revision (with the power to review and veto legislative bills), and a council of appointment. Not surprisingly, the manor system survived well into the nineteenth ­century.

N e w Yo r k ’ s L i v i n g Co n s t i t u t i o n , a n d B e yo n d

135

A series of amendments between 1821 and the Civil War gradually extended the suffrage to include virtually all adults except w ­ omen and Blacks. More impor­tant, an 1846 convention produced what has been called the “­people’s constitution,” both b­ ecause of its broad-­based membership and its devolution of power to the voters. ­Under its terms, the powers of local governments ­were increased, and virtually all significant state and local officeholders—­from judges to sheriffs, the state attorney general to court clerks and canal commissioners—­ were to be chosen by popu­lar election. Despite the convention’s refusal to extend the suffrage to w ­ omen and Blacks, ­there is considerable truth to Galie’s suggestion that “the 1846 Constitution represents the apogee of participatory democracy in New York.”8

The Constitution of 1894 ­ very twenty years since 1846, the constitution has required the question E ­whether or not to have a constitutional convention to be put to the voters. Following the failure of an 1867 convention to produce an acceptable text, the voters again chose to convene a convention in 1894, and it was this convention that produced the basic document ­under which the state is still governed. The convention of 1938 did not alter the basic structure of government erected in 1894. The 1938 convention did attempt some in­ter­est­ing changes, however. It went beyond e­ ither national policy or the constitutions of most other states in guaranteeing a new set of social and economic rights. New York remains the only state with a constitutional guarantee of “the aid, care, and support of the needy.” The convention also marked the first constitutional affirmation of a public role in housing. The convention guaranteed l­abor’s right to or­ga­nize and a state role in public health, far beyond existing national policies or t­ hose of most states—­a development that may have significant impact in the wake of the COVID-19 pandemic, environmental events such as Hurricane Sandy in 2012, and the ongoing ­battle to introduce a single-­payer health care system throughout the state. Fi­nally, the 1938 convention expanded the bill of rights. Long before the US Supreme Court interpreted the F ­ ourteenth Amendment’s equal protection clause to protect racial equality, the New York Constitution specifically prohibited discrimination on the basis of race, color, or creed. The 1938 convention also added language—­similar to that of the federal Constitution—­prohibiting unreasonable searches or seizures, making New York the first state to recognize wiretaps as a potential threat to liberty. Unlike other conventions, the 1938 gathering submitted its work to the voters as a series of amendments rather than in the form of a new constitution, and the bulk of its recommendations w ­ ere passed.

13 6 C h a pt e r  5

Numerous amendments to the state constitution approved by the voters since 1938 have done ­little to alter the basic text. A 1967 convention offered a number of revisions, but when put to the voters as a complete package, it went down to overwhelming defeat. Two of the convention’s recommendations ­were particularly controversial. First, the convention recommended the repeal of a provision of the 1898 constitution called the Blaine Amendment, which prohibits use of state money by religious schools. Infuriating fiscal conservatives, the second recommendation suggested eliminating the requirement that state debt extensions be approved by the voters. Some of the convention’s proposals have been added as amendments, including a conservation bill of rights, a reor­ga­ni­za­ tion of the courts, and a provision allowing the legislature to call itself into session. O ­ thers have simply dis­appeared, such as an article requiring the state to pay for college tuition for all state residents. In 2017, a host of potential amendments w ­ ere considered promising fodder for a convention that prominent stakeholders advocated across the state. Among ­these potential amendments ­were new and tougher campaign finance restrictions; more stringent ethics requirements for public officials; reforms to the legislative pro­cess in Albany; proposals to modernize state government, making it more technologically accessible to citizens; and a proposal to preserve wildlife protections in the Adirondacks u ­ nder threat by developers. A February Sienna College poll reported that 63 ­percent of residents favored the convention; however, following an intense but protracted ­battle, 83 ­percent of voters across the state rejected a new convention. Considerable sums of money w ­ ere spent in opposition across the state, with the opposition led by an unusually diverse co­ali­tion of groups, from l­abor u ­ nions to gun rights advocates. They w ­ ere joined by Governor Cuomo, the Republican majority leader of the State Senate, and the Demo­cratic Speaker of the Assembly, all of whom feared changes would imperil their accustomed ways of d­ oing business. While almost every­one agreed that the 1894 constitution was confusing, obsolete, and in need of revision, they w ­ ere happier to live with the demons they knew than t­hose that might emerge in a new document. According to Bruce Cain and Roger Noll, voters tend to vote in the negative on constitutional changes when they fear loss more than they seek gain. “If they care more about what they might lose on one par­tic­u­lar issue than what they might gain on the o ­ thers, they w ­ ill join the opposition, and when the sum of the disgruntled reaches a critical mass, the revision pro­cess grinds to a halt.”9

N e w Yo r k ’ s L i v i n g Co n s t i t u t i o n , a n d B e yo n d

137

New York’s Constitutionally Strong Governors Historically New York has and ­will continue to have strong governors. Even if the written constitution did not provide the office with significant formal powers, the visibility and economic power of the state automatically confers on its chief executive an aura of influence. The governor of New York is treated by default in the media as a potential president. To wit, ten of the state’s fifty-­ three governors have been major party candidates for the presidency, with four (Martin Van Buren, Grover Cleveland, and Theodore and Franklin D. Roo­se­ velt) winning and six serving as vice president. George Pataki ran for the nation’s highest office in 2016 to no avail, and Andrew Cuomo’s supporters stirred the rumor mill at multiple times during his three-­terms. In comparing state constitutions, po­liti­cal scientists have long distinguished between strong and weak governors. Strong governors, the lit­er­at­ure suggests, are armed with the several key powers. First, they are elected to four-­year rather than two-­year terms and can run for reelection as often as they choose. A majority of the states restrict their governors to one or two terms. New York is one of only twelve states with no restrictions. While only two states now have elections ­every two years, New York still is among only thirteen states with unlimited four-­year terms. Second, the governor is one of only four statewide elected officials. Aside from the lieutenant governor, comptroller, and attorney general, the governor appoints—­and can fire—­all cabinet members. Third, New York’s governor not only has the power to establish revenue estimates and draft the executive bud­get but also has the power to veto specific items added by the legislature. Most states now grant both of ­these powers to the governor, but ­there are few states in which the pro­cess has become so deeply institutionalized as in New York. Highlighting this, New York governors have become especially ­adept at using the state’s appellate court ruling in Pataki v. Silver (2004), making it difficult to challenge executive power over the bud­get. In comparing governors, Thad Beyle quantifies vari­ous aspects of t­hese institutional powers on a scale of one (very weak) to five (very strong). With an overall score of 4.1, New York’s governors ­were tied for second among the fifty states in 2004.10 ­Little has changed since then, and in most impor­tant re­spects the formal powers of the governor in New York closely parallel t­hose of the president in Washington, DC. They include the powers to “take care that the laws be faithfully executed,” to grant reprieves and ­pardons, and to appoint—­ with the consent of the Senate—­members of the judiciary and most impor­tant executive agencies. As with the presidency, the powers of the governor are checked and balanced by the legislature’s ability to make laws, override vetoes

13 8 C h a pt e r  5

(by a two-­thirds vote), approve major appointments, and reor­ga­nize the executive branch. New York’s governors also have the ability to single out individual lines and items in the legislative bud­get for executive veto. This “line-­item veto power” was extended by the Court of Appeals. U ­ nder t­hese rulings, the programmatic language used in the governor’s bud­get to describe how vari­ous funds are to be spent cannot be amended by the legislature but only voted up or down.11 While the legislature’s ability to negotiate t­ hese program issues remains, its bargaining position vis-­à-­vis the governor has been weakened by ­these decisions. Not unlike the realities in Washington, DC, the real powers of governors in Albany flow largely from their abilities to use effectively the parchment powers granted them by the formal constitution.

New York’s ­Really Strong Governors: The Exercise of Power Even before the Court of Appeals expanded the ability of governors to prevent the legislature from amending their programs, governors of New York had resources at their command that significantly extend and enhance their formal authority. On “the second floor,” the part of the capitol housing the governor’s office, the bureaucracy is large and growing. The first source of informal power is the governor’s ability to staff the executive office. The ability of New York governors to shape their own administrations is not only extensive but tends to be ­free of legislative impediment. Joseph Zimmerman wrote in 1981, “one of the unwritten rules of Empire State politics is that the governor is ­free to pick the top members of his administration provided they are competent and honest.”12 Neither the bud­get nor the official directories provide the a­ ctual numbers, but an open rec­ords request shows that in 2016 more than 40 ­percent of t­ hose working in the executive chamber w ­ ere actually listed as employees of other agencies and authorities. According to the Albany Times Union, the six-­figure salary of the governor’s director of LGBTQ affairs is actually paid from the Department of State’s bud­get. Even during the 2020 hiring freeze, the governor continued to augment his personal staff using this approach. Rec­ords from 2017 show twenty-­seven se­ nior staff earning more than $100,000 a year, but it is virtually impossible to know how many employees are working directly for the governor or other agencies.13 A second source of informal power for New York governors derives from their almost unique access to key media. Like the governor of California, the New York governor is one most talk show hosts and late-­night comedians read about in their morning papers. Like the governors of California and Texas,

N e w Yo r k ’ s L i v i n g Co n s t i t u t i o n , a n d B e yo n d

139

governors of New York are national figures simply by virtue of the size of their electoral constituencies. Third, candidates for governor in New York typically run expensive, highly vis­i­ble campaigns. Eliot Spitzer, for example, raised $41 million in 2006 and had already raised another $3 million for his 2010 campaign by the time he was forced to resign in 2007. Andrew Cuomo—an aggressive fundraiser with long-­reported and commonly criticized ties to wealthy donors from across the country—­collected more than $100 million in his three elections.14 By the time they are elected, most New York governors are well known to the voters. Fourth, party discipline in the legislature has more than a faint echo in the governor’s mansion. As long as the governor’s party maintains more than one-­ third of the seats in one ­house of the legislature, it has proven almost impossible to override a gubernatorial veto. Arguing that trying to do so could only embarrass the ­whole party, Demo­crats and Republicans alike have been able to keep their troops in line to protect the tradition of letting vetoes stand. Sometimes, as we ­shall see, legislative leaders extract their price, and governors must be careful not to push their veto power too far. Remarkably, only two gubernatorial vetoes ­were overridden in the entire twentieth ­century. Not ­until George Pataki pushed too far—in what was widely perceived as an attempt to bolster his conservative credentials for an ill-­fated presidential campaign—­did the legislature ever use its override power effectively. But even then, the deck was clearly stacked in f­ avor of the governor.

The Governor’s Rivals for Executive Power ­ here are states in which virtually the entire cabinet is elected separately. T ­Running in the same statewide constituency as the governor, and cultivating strong support among the groups whose interests their departments affect (such as farmers in the case of an agriculture commissioner), ­these officials often emerge as the governor’s key rivals for power. ­Because they cannot be fired, and b­ ecause they have their own electoral bases, separately elected department heads tend to diffuse gubernatorial authority. New York’s governors are characterized as strong governors in part ­because they have few such rivals for power.

Th e Li e ut e na n t Gov e rn o r, Com ptroller, a n d Atto r n ey G e n e r a l In New York, only the comptroller, the attorney general, and the lieutenant governor are statewide elected officials and potential rivals to the governor. Former

14 0 C h a pt e r  5

Box 5.2  The Powers of the Governor Richard Neustadt’s 1960 classic study, Presidential Power, was pioneering in its emphasis on the skills that make some presidents more effective than ­others.15 ­Whether or not he was “the best governor in New York history,” the leadership skills displayed during Nelson Rocke­fel­ler’s sixteen years in Albany defined the modern governorship.16 His ability to blend personal charisma, media appeals, patronage, and raw power to make deals with both the more conservative members of his Republican Party and the Demo­crats across the aisle enabled him to govern effectively without creating significant enemies. Three of Rocky’s successors—­Hugh Carey (1975–1982), George Pataki (1995–2006), and David Paterson (2008–2010), with backgrounds in the US House and the state legislature—­also enjoyed the give-­and-­take of making deals. Three modern governors, Mario Cuomo (1983–1994), his son Andrew (2011–2021), and Eliot Spitzer (2007–2008), took far more confrontational approaches. “I had a hard time with Mario,” former majority leader Ralph Marino told us, “­until I realized that he was a bully, and the only way to deal with a bully is to bully back.” Eliot Spitzer liked to brag of his ability to “steamroll” his opponents, only to be flattened himself and forced to resign. No governor in living memory more thoroughly used the powers of the office than Andrew Cuomo, who exploited ­every opportunity the state constitution gave him to emphasize command over bargaining. ­Those opportunities are both numerous and formidable. “Control over appointments and the bud­get creates such a gross concentration of power that any governor can promise his cronies enormous rewards—­and threaten terrible retribution against his enemies.”17 No president and no other state governor has anywhere near this extent of formal power. A major flaw in Professor Neustadt’s approach to power was his failure to take account of the s­ imple limitations on personal influence that the leadership of any complex organ­ization imposes. T ­ hose who cannot delegate, who cannot work collectively, and who micromanage ­will be so overwhelmed as to leave many impor­tant decisions unmade or left by default to ­others. And too forceful a focus on expanding personal power can actually create a culture of fear that inhibits feedback and discourages alliances. As one of Neustadt’s critics notes, a president “who would carry by himself all the tasks associated with successful bargaining ­will not be a President for very long. An im­mense and

N e w Yo r k ’ s L i v i n g Co n s t i t u t i o n , a n d B e yo n d

141

consistent overloading of his physical and ­mental apparatus ­will produce a breakdown.”18 Perhaps most in­ter­est­ing about Andrew Cuomo’s governorship was his ability to govern despite his extreme centralization and personalization of power, the toxic environment of the second floor, and his harassment and hectoring of his perceived enemies. The question Zephyr Teachout raises “is not how Cuomo fell so quickly, but why it took so long.” And the answer is that “New York’s current constitutional structure . . . ​sets up the state for abuse.”19

lieutenant governor Mary Ann Krupsak ran in the Demo­cratic primary against Hugh Carey, who was her r­ unning mate just four years e­ arlier, while Lieutenant Governor Betsy McCaughey Ross ran on the Liberal Party line in 1998 a­fter ­running with George Pataki as a Republican in 1994. It is almost a reflexive action to put the sitting attorney general and comptroller—­both of whom have demonstrated the ability to win statewide elections—on the short list of potential candidates for governor, even though most do not run. One of the more in­ter­est­ing paradoxes of New York politics is how infrequently other statewide elected officials actually have run for governor. Part of the reason is prob­ably rooted in historical accident. Cumulatively, the offices of attorney general and comptroller ­were held by Republican Louis Lef kowitz and Demo­crat Arthur Levitt, respectively, for forty-­four years; neither of them seemed to have higher po­liti­cal ambitions. The tradition of attorneys general eschewing runs for higher office ended with Eliot Spitzer, who used his position as the state’s top ­lawyer and his “sheriff of Wall Street” mantle to launch his run for governor in 2006. Andrew Cuomo successfully followed suit in 2010, following an aborted attempt to win the Demo­ cratic Party nomination for governor in 2002. Another reason for the weaknesses of ­these officers as rivals to the governor inheres in the written constitution, which is uncommonly spare in defining their powers. The comptroller’s constitutional power is defined largely in terms of the unglamorous accounting chore of approving all state vouchers and auditing state and local government accounts. While such audits can be embarrassing to a corrupt or incompetent administration, in the normal order of ­things they carry ­little po­liti­cal weight. Similarly, the comptroller’s role as guardian of the pension plans of almost a million pre­sent and former state and local employees is an impor­tant job that receives ­little public attention. If the state constitution is terse in its definition of the powers of the comptroller, it is virtually ­silent on the powers of the attorney general. Aside from

14 2 C h a pt e r  5

heading the Department of Law and reporting to the legislature on the ­legal implications of proposed constitutional amendments, ­there is no formal power inherent to the office. In practice, the legislature and more ambitious occupants of the office substantially expanded the role and size of the Department of Law. During his tenure from 1979 to 1990, Attorney General Robert Abrams expanded the office, lobbying the legislature to give it more power over consumer protection and civil rights. Eliot Spitzer exploited ­those new powers in pursuing illegal trading practices on Wall Street, garnering national attention for a brief time before his po­liti­cal demise. Andrew Cuomo similarly parlayed his role as attorney general to become governor. The state’s first Black ­woman to become attorney general—­Letitia James—­has made strides to prosecute former president Trump and made national headlines by ­doing so.

Co mm i s s i on e rs a n d De pa rtm e n t H eads ­ ecause the constitution limits the total number of departments to twenty, B ­there can be only twenty appointed executives with the formal title of commissioner. In practice, many units not called “departments” are located in the “executive department” and are of comparable importance. The executive department’s Division of Housing and Community Renewal, for example, has a larger bud­get than many of the formal departments. The Divisions of ­Human Rights, Parks and Recreation, and the State Police are departments in all but name. What­ever they are called, the centrifugal forces pulling agencies from the center is strong. As policy prob­lems become more complex and technical, the ability of ­career experts to isolate themselves from control by elected neophytes expands. Most ­career civil servants are highly protective not just of their own jobs but of their agency’s mission as well. Unionized employees—­ including most state civil servants—­are buttressed by the extra orga­nizational clout of the ­union. Additionally, each agency has strong supporters in the private sector, legislature, and parallel federal agencies. In describing the federal government, Louis Galambos expresses what most informed observers believe to be true in Washington. Although nominally in charge, the author notes, the president’s grip on the executive branch is weaker than most Americans think. He can place his own po­liti­cal appointees in departments and agencies, but where well-­entrenched administrative officers are in charge of programs specifically authorized by statute, even the president can do ­little to influence their per­for­mance. Moreover the bureaucracies have in some instances acquired a virtual mono­poly on expertise, on knowledge

N e w Yo r k ’ s L i v i n g Co n s t i t u t i o n , a n d B e yo n d

143

about their specific programs and their implementation. . . . ​Bureaucratic decisions have in many cases replaced legislative or executive decisions as the key f­ actor shaping the specific content of our national policies.20 One of the defining characteristics of New York State government is the extent to which most day-­to-­day issues of governance are centralized. What­ ever its formal position on an orga­nizational chart, the typical department or division is firmly ­under the governor’s control. While the Senate has the power to approve or disapprove initial appointments, the governor alone has the power to dismiss. Appointed bureaucrats, in other words, serve at the plea­ sure of the governor. The governor’s office on the second floor of the capitol—­ known officially as the executive chamber—­has a number of less stringent mechanisms in place for controlling and coordinating administration policies. Dif­fer­ent governors emphasize dif­fer­ent mechanisms and display dif­fer­ent styles of leadership, making it difficult, as one study put it, to describe a “generic administration.”21 But both the formal structure of the governor’s office and the realities of New York politics combine to give the chamber a degree of influence over the bureaucracy that is perhaps second to that of no other governor and certainly far stronger in relative terms to that of the president. Still, the size and complexity of New York government make it almost inevitable that t­ here w ­ ill be a substantial degree of bureaucratic discretion. The decision as to how best to combat a pandemic or reduce climate change is not likely to be centralized in the office of an elected politician. Many state bureaucrats, moreover, have access to a number of “pass-­through” powers derived from federal rather than state law. The New York State Department of Environmental Conservation monitors the state’s clean air compliance act but also is responsible for enforcing federal rules in the state. B ­ ecause New York’s air quality standards often match or exceed t­hose of the federal government, bureaucratic discretion is less impor­tant than it might be in a more conservative state. ­There are three formal institutional mechanisms through which policy direction radiates from the second floor to the agencies. On a yearly basis ­every fall, each agency must clear its legislative agenda through the program office ­under the guidance of the director of state operations. ­These proposals are circulated for comment among other agencies that might be affected and then checked, as one program officer put it, “to make sure that ­these bills support, or at least d­ on’t work c­ ounter to the governor’s priorities.”22 Agencies also are expected to report regularly with the program office on their routine activities. Fi­nally, the Division of the Bud­get (DOB), though not formally a part of the executive office, plays a significant role in monitoring agency policies. The

14 4 C h a pt e r  5

DOB primarily develops the executive bud­get but also has access to the governor and the agencies. The line between money and policy is a thin one, and the policy of recent governors has been to bring them closer together. Robert Margado—­secretary to Governor Carey—­claimed to have “brought the first floor up to the second floor. That was difficult. I made the Bud­get Division part of the central policy pro­cess, a participant in the executive pro­cess. I forced them to understand the po­liti­cal judgments as well as financial judgments in ways they ­were not previously prepared to do.”23 New York’s bud­get emphasizes policy more than the federal government’s and most states’ bud­gets do, ­because it makes no real distinction between program authorization and appropriations. In Congress and many states, it is—­ technically at least—­illegal to legislate an appropriations bill. Funds cannot be bud­geted for an agency or program that has not already been established in a separate law. In New York, it is commonplace for the governor and legislature to create all kinds of new policies in the bud­get. Thus, even before Governor Carey brought the DOB “up to the second floor,” it was a very impor­tant part of the policy pro­cess, and it continues to become more and more central. The New York State bud­get has become the repository for key legislative and policy priorities—­whether fiscal or nonfiscal. Andrew Cuomo’s executive administration grew more disciplined in its control of the state’s agencies and its mastery of the annual bud­get dance with the legislature, transforming perennially late bud­gets ­under the previous GOP governor into mostly on-­time ones ­under Cuomo. Governors have still one other device for influencing the flow if not the substance of policy. By reshuffling components of the executive chamber or by getting the legislature to authorize a full-­scale reor­ga­ni­za­tion of executive departments, a governor can refocus the level and nature of administrative attention a policy proposal is likely to receive. If administrative agencies cannot be in­de­pen­dent, they want to be as close to the top as pos­si­ble. For example, the Division of Criminal Justice Ser­vices and the Council on the Arts are thought to have greater visibility and access to the governor than they would if located further down the hierarchy in a traditional department. U ­ nder Governors Hugh Carey and Mario Cuomo, a number of offices w ­ ere created in the executive chamber whose functions closely paralleled t­ hose of existing departments. Governor Pataki consolidated a number of such units, to the manifest annoyance of advocates for t­ hose groups, who saw their access to the governor weakened. Andrew Cuomo furthered Pataki’s consolidations, claiming “austerity,” and retained the latter’s ability to distance his administration from t­ hose advocates.

N e w Yo r k ’ s L i v i n g Co n s t i t u t i o n , a n d B e yo n d

145

Qua s i -­i nd e pe n de n t Authoritie s, Commissions, a n d Boa r d s When the 1938 amendments to the state constitution failed to provide mechanisms for funding social welfare programs, the government turned to reliance on public benefit corporations that ­were able to issue debt without voter approval. The Port Authority of New York and New Jersey—­created in 1921 as an in­de­pen­dent interstate corporation funded by revenue bonds (i.e., debts that would be paid back in the f­ uture from bridge tolls and other revenues)—­provided a working model by New York’s “master builder” Robert Moses. Though he never held elective office, Moses created dozens of public authorities from the 1930s to the 1960s that s­ haped the state, giving New York the dubious distinction of having more public debt than any other state. As of September 2016, ­there ­were 324 state-­level authorities and subsidiaries and 860 local authorities across New York. Of ­these, eight ­were established by virtue of interstate or international agreements. T ­ hese 1,192 extraconstitutional entities spent a total of $67 billion, compared with the $156 billion spent by state agencies funded through the formal bud­getary pro­cess, or roughly half as much as was spent by all the state’s constitutionally created agencies combined. Roughly 96 ­percent of all outstanding state-­backed public debt had been issued by public authorities.24 Not only are ­these off-­budget authorities able to evade the constitution’s restrictions on debt, they also are f­ ree of most po­liti­cal controls. Once the original board is chosen, the corporation becomes a sort of self-­perpetuating oligarchy in which vacancies are filled not by elected officials but by the board’s remaining members. ­These in­de­pen­dent authorities continue to pose a danger of becoming rogue elephants capable of trampling lesser creatures. ­Because their finances do not go through the standard bud­get pro­cess, they remain ­free of the DOB’s influence. Further, b­ ecause they often have self-­perpetuating boards of directors, they are frequently ­free of control from the second floor. Nonetheless the incentive to create such in­de­pen­dent agencies is strong. By limiting the number of departments to twenty, the constitution prohibits the governor and legislature from expanding the executive. More impor­tant, the constitutionally mandated balanced bud­get creates an imperative to ensure capital-­intensive agencies such as the New York State Thruway Authority and Empire State Development (ESD) are off-­budget, raising their own funds through borrowing and fees. The Rocke­fel­ler administration was particularly fond of creating new authorities, such that their total operating bud­gets w ­ ere “nearly half the size of the state’s own bud­get for operating its departments and agencies.”25 Some

14 6 C h a pt e r  5

of the more ambitious of ­these in­de­pen­dent agencies languished in l­ater years when a shrinking state economy made them unable to pay back their accumulated debts. On the day he was sworn in as governor in 1975, Hugh Carey was faced with the imminent collapse of the state’s Urban Development Corporation (now Empire State Development) and forced to devise a bailout plan. Carey and his successors, moreover, have found it difficult to exercise firm control over many of ­these corporations and authorities. As Gerald Benjamin and Robert Lawton write, “though firmly controlled by Rocke­fel­ler, the governor who created them and made the initial appointments, the board members of some of ­these agencies who serve fixed terms, w ­ ere less responsive to Governors Wilson and Carey. Although Mario Cuomo has had nearly twelve years to put his own stamp on New York’s authorities through appointment and reappointment, his control has yet to approach that exercised by Rocke­fel­ler.”26 The Pataki administration’s use of some authorities to reward po­liti­cal allies led to a series of minor scandals in the last years of his administration. Calling them “patronage dumping grounds” in his 2007 state of the state address, Spitzer proposed a series of reforms that would have eliminated nearly 200 of the state’s 733 in­de­pen­dent authorities and brought the remaining boards ­under the same financial controls as other agencies. That effort did not survive the legislative pro­cess, perhaps b­ ecause of the Republican-­controlled State Senate, so Andrew Cuomo relied on his vast appointment power to exercise as much policy control and bud­getary discretion as pos­si­ble over the authorities’ governing boards and their chairs. In the case of key authorities such as the Metropolitan Transit Authority (MTA), the results have been mixed. The governor had significant leverage over policies and the completion of high-­ profile proj­ects, including the long-­awaited Second Ave­nue Subway in New York City, but l­ittle oversight over ballooning bud­gets and deficits run by the MTA a­ fter he took office in 2011.27 One other in­de­pen­dent agency—­the Board of Regents—is unique in its composition. Unlike public authorities, the regents are subject to the state’s regular bud­getary controls, yet the seventeen-­member board is appointed by the legislature, not the governor. ­Because its elections take place in a joint session of the legislature’s two h ­ ouses, Demo­crats in the larger Assembly historically have controlled the pro­cess, but appointments tend to be ­free of overt partisan bias. With four at-­large members and one each from the state’s thirteen judicial districts, the regents represent ­every part of the state. They tend to be retirees, often from fields related to education, and they take their volunteer jobs quite seriously, serving on numerous committees and working groups in addition to attending monthly meetings in the board’s magnificent Albany meeting room.

N e w Yo r k ’ s L i v i n g Co n s t i t u t i o n , a n d B e yo n d

147

The board—to the annoyance of most governors—­also appoints the chancellor, vice chancellor, and commissioner. In consultation with them, it sets general policy guidelines for the state’s more than seven hundred school districts; establishes degree requirements and curriculum standards; regulates charter schools; oversees libraries, museums, and public broadcasting; and also regulates most of the state’s professions. For all of its extensive and seemingly formidable powers, however, the governor and the legislature continue to control the purse strings. Confusingly, the board is officially known as the University of the State of New York, not to be confused with the State University of New York, which has its own board that, together with the City University of New York board, reports to the regents. “When it comes to higher education,” it can be argued, “the Board of Regents is much like the monarch in feudal times: seemingly more power­ful and authoritative than it r­ eally is, and yet not entirely without authority or moral suasion. It is listened to, respected, consulted, often ignored, usually tolerated, and in ­those few watchdog areas where is writ runs undisputed, obeyed.”28 To a considerable degree, much the same can be said about the regents in general; the board’s authority tends to be more apparent than real. With Demo­cratic majorities in both h ­ ouses of the legislature, the 2019 appointments suggest what may be a growing tendency to strengthen the board’s role, particularly in the areas of financial equity and assessment, and renewal policies for charter schools.

The Legislature The constitution requires that the laws of the state pass both ­houses of the legislature, an Assembly of 150 members and a Senate of 63. The constitution of 1777, though less focused on the legislature than ­were the constitutions of the other twelve colonies, provided for a strong, in­de­pen­dent legislature. A long series of scandals in New York and other states brought the institution into growing disrepute. When the distinguished student of US politics Lord Bryce wrote in 1906 that “the state legislatures are not high-­toned bodies,” he was expressing both the prevailing public view and the concomitant real­ity.29 During the past two centuries, a series of amendments and redrafts of the constitution gradually eroded the powers granted to the legislature in 1777 and imposed procedures designed to check specific kinds of abuse. In 1847, for example, the Senate was stripped of its power to sit as part of the court of final appeals. Also added to the constitution ­were a number of procedural rules such as the requirement that local and private bills be confined to one subject to prevent the legislature from sneaking special provisions into other­wise innocuous laws. The constitution

14 8 C h a pt e r  5

also lists fourteen kinds of local bills the legislature cannot enact and forbids public assistance to religious institutions based on the Blaine Amendment. Bills in the legislature—­unless given a special waiver by the governor, called a message of necessity—­must “age” for at least three days before final passage. Most impor­tant, the power to initiate the state’s bud­get was transferred in 1927 from the legislature to the governor. Partly as a result of ­these changes in formal rules, partly as a consequence of electoral politics, and partly ­because of strong governors—­Smith, Dewey, and Rocke­fel­ler in particular—­the legislature by the ­middle of the twentieth ­century was not a strong institution. In the 1950s, Governor Dewey would sometimes wait u ­ ntil just a few days before the deadline to submit his bud­get to the legislature, which usually passed it virtually unchanged. Nelson Rocke­ fel­ler, it was sometimes said, owned one ­house of the legislature and had a long-­term lease on the other. No change has been more striking in recent New York politics than the reemergence of the legislature as a key policy actor. With no significant changes in the written constitution, the rise of the legislature as an equal branch has been remarkable.

Institutionalization of the Legislature In a widely reprinted 1968 essay, Nelson Polsby delineated three characteristics of what he called an “institutionalized” legislature. Referring to the US House of Representatives, Polsby suggested that an organ­ization achieves institutional status to the extent that it (1) is differentiated from its environment, (2) is relatively complex, and (3) has fixed rules and procedures that shape its be­hav­ior into relatively predictable patterns.30 The institutionalization of the House was manifest most clearly between 1890 and 1910. Similar patterns can be discerned in Albany, largely between 1950 and 1970, when the con­temporary legislative system flowered. According to Polsby, “in an undifferentiated organ­ization entry to and exit from membership is easy and frequent.”31 In the US House of Representatives, more than 40 ­percent of the members elected prior to 1890 w ­ ere in their first term. Since 1910, the proportion of freshmen has seldom exceeded 25 ­percent, and the average number of years served increased from four to six years in the nineteenth ­century to more than ten years in recent years. T ­ here has been a similar change in Albany. The percentage of freshman legislators in the Assembly declined from 56 ­percent in the 1890s, to 26 ­percent in the 1920s, to 13 ­percent in the 1980s. In the Senate, it went from 59 ­percent in the 1890s, to 30 ­percent in the 1920s, to 10 ­percent in the 1980s. Although legislative salaries remained low, “the legislature became a very attractive place to return to

N e w Yo r k ’ s L i v i n g Co n s t i t u t i o n , a n d B e yo n d

149

by around 1930,” and it apparently has become even more attractive since.32 By 2000, the average New York State legislator was in office for 12.7 years, and a majority of legislators consider membership as a c­ areer.33 Instead of the citizen-­legislators who moved in and out of the legislature to resume their “real” occupations as farmers, ­lawyers, or businesspeople, “­there is not a very high proportion [­today] who have full-­time occupations outside the legislature.”34 In their biographies, “in 1964 not a single member of e­ ither h ­ ouse listed their occupation as ‘Legislator’ in the official guide to state Government. . . . ​By 1988, however, more than two-­thirds of Assembly members and more than half of Senators w ­ ere describing themselves not as l­awyers, businessmen, or con­sul­tants but as legislators.”35 This point is often obscured by high-­profile corruption scandals in which legislative leaders such as former Demo­cratic Assembly Speaker Sheldon Silver illegally profited from business deals resulting from the combination of his public and private roles. In light of this scandal and an almost simultaneous one in the Senate involving former Republican majority leader Dean Skelos, Albany became home to an ongoing debate over ­whether or not legislators may even earn second incomes. A new law tied to a salary increase was passed in 2019, limiting outside income. But it has been tied up in litigation. Nonetheless, the vast majority of New York State legislators devote themselves to lawmaking full-­time. Another sign the legislature has become a distinct institution is manifested in growing control over its own leadership and governance. The first Speaker of the Assembly to serve for more than two consecutive terms was S. Frederick Nixon in 1899–­1905. Four to eight years has been the norm in recent years. In the Senate, sixteen men served as majority leaders between 1880 and 1920, and only one for more than two terms. Between 1954 and 2020, nine men and ­women have held the same job—­with Warren Anderson (1973–­1988) and Joseph Bruno (1994–­2008) holding the post for thirty of ­those years. Moreover, the legislative parties in both ­houses have chosen their own leaders. An impor­ tant source of Nelson Rocke­fel­ler’s legislative power was the influence he exerted in the elections of party leaders in both ­houses and in one case in the Demo­cratic Party. Governors prior to Rocke­fel­ler might not have actually involved themselves in the pro­cess of leadership se­lection, but the legislative leadership clearly viewed its role in subordinate terms. Many participants cite a 1981 fight over the financing of the MTA as marking a crucial turning point in defining the in­de­pen­dence of the legislature. In the words of a former Speaker, “When this major institution was on the verge of collapse, and an executive attempt to solve the prob­lem was abandoned, I believe that [Senate Majority Leader] Warren [Anderson] and I jumped into the breach. . . . ​We put the bud­get together that year, and I think that this gave birth to the sense that

15 0 C h a pt e r  5

the legislature had fi­nally achieved the capability of developing its own financing plans and had the courage to put into place unpop­u­lar taxes when p­ eople said no one could do it. I think that the w ­ hole MTA era was a turning point in executive-­legislative relations.”36 Also contributing to the autonomy of the legislature—as noted in chapter 3—­was the decline of party machines. Since 1970, legislators are more like autonomous actors than delegates of local bosses. Legislators are ­free to work with one another in the legislature rather than in lockstep with a myriad of diverse external organ­izations. Most impor­tant, perhaps, was the professionalization of the legislature, which came in the wake of completion of a separate legislative office building in the Empire State Plaza. Jeffrey Stonecash shows that in constant dollars, the bud­get of the legislature increased tenfold from the 1900s to the 1980s, with the bulk of the increase coming a­ fter 1950.37 “During the Rocke­fel­ler era the legislature . . . ​was incapable of making policy initiatives in most areas. It was more often in a position of responding to gubernatorial initiatives than proposing its own.”38 In the con­temporary legislature, each member has a district office with a minimum of two paid assistants and an Albany office with a minimum of one. Each committee has internal counsel and staff aides plus the help of a counsel appointed by the party leader. The central research staff of the party leaders, the financial experts on the Assembly Ways and Means and Senate Finance Committees, and the central staff in such specialized offices as the Bill Drafting Commission makes New York’s legislature one of the best staffed in the world.

Th e Gro wt h of In te rna l Co m p l e xity Growing staff has made the legislature a far more complex organ­ization. In Congress, one of Polsby’s key indicators of complexity was found in the proliferation of subcommittees and party leadership positions. In New York, t­ here has been a similar trend, with the balance tilted far more heavi­ly in the direction of party leaders than committees. While committee work is not trivial in New York, the party leaders wield ultimate control. The result, according to former Republican Speaker Joseph Carlino is that “the legislature is more highly or­ga­nized than any other in the world—­bar none. Never once in the fifteen years since I’ve been ­there have we failed to get a Republican majority for a ‘must’ piece of legislation. We Republicans have a tradition of discipline. Any new member is immediately schooled in that tradition of Republican control.”39 The combination of staff resources and centralized leadership is at the core of the emergence of the legislature as the coequal of the governor: “The party conferences within the legislature serve as vehicles for policy posi-

N e w Yo r k ’ s L i v i n g Co n s t i t u t i o n , a n d B e yo n d

151

tions. The legislative staff generates information and studies to support party positions. . . . ​All this has allowed the legislative parties to participate in and structure policy debates within the state. . . . ​The legislature is now a full partner in the po­liti­cal pro­cess.”40 As in Washington, the state legislature has moved irregularly but inexorably ­toward the creation of more and more policy-­relevant titles and positions. In 1981, t­ here w ­ ere thirty standing committees in the Assembly and twenty-­ six in the Senate.41 ­Today, the respective numbers are thirty-­seven and thirty-­ three, the largest total among the fifty states. Counting the majority and minority leaders, party whips, and so on, ­there are more than seventy-­five “leadership” positions for sixty-­three senators. In the Assembly, t­ here are “only” seventy-­four committee leaders among the 150 members, and ­there is a rich variety of other positions to satisfy member ambitions, such as assistant, deputy, and deputy assistant party leader; majority and minority whip; assistant whip; and Speaker Pro Tempore. W ­ hether substantive power actually flows from ­these positions is another question. More impor­tant, the New York State legislature has become a large, highly differentiated, complex organ­ization. Mea­sured in terms of its workload, staff, facilities, and resources, the con­ temporary legislature would have been unrecognizable fifty years ago. Polsby defines another aspect of institutionalization as a shift from discretionary procedures to fixed rules. Examining the se­niority system and the treatment of contested elections, he demonstrates that established methods of allocating resources displaced personal considerations. The power of party leaders—­while at one level intensely personal—is at another level a sign of institutional strength. Former assemblyman Arthur Kremer noted that “in the 1960s the County Chairmen w ­ ere the ones to consult when t­ here was a tough issue, when they needed the votes.”42 ­Today, the bargaining takes place entirely within the institution. The rules may not be fixed, but the bound­aries are. County leaders, lobbyists, and governors have to deal less with individual personalities than with representatives of the institution—­the elected party leaders. Instead of the highly complex rules that help give Congress its institutional identity, the New York legislature has essentially one rule: whoever gains and maintains control of the majority party is beholden only to supporters in the legislative party caucus. Strong legislative parties like New York’s are in part a function of size. The smaller the legislature, the more individual legislators share power, while larger bodies structure relations mostly through party leaders.43 It also is very much a function of a state constitution that gives so much power to the office of the governor that the only way for the legislature effectively to assert itself is through strong organ­izations.

15 2 C h a pt e r  5

Strong Parties, Strong Committees: The Pathways of Power An old adage says that “the fox knows many ­things, the porcupine only one, but the porcupine knows his very well.” To put it in porcupine terms, ­there is only one route to power in the New York State legislature, and to know it well is to get ahead. Even in parliamentary systems in which party discipline governs po­ liti­cal survival, ­there are few legislatures in the world that are more leadership oriented than New York’s. Power in the New York State legislature follows a strict hierarchical ranking. At the top are the elected leaders of the majority parties, the Speaker of the Assembly and the majority leader of the Senate. Inner circles of their closest allies in the majority party come next, followed by committee chairs. Rank-­and-­file Demo­crats in the Assembly and more recently in the Senate have legislative influence proportionate to their skills, their efforts, and particularly their closeness to the leadership. The leaders of the minority parties in each ­house are sometimes consulted, particularly in the Senate, which is more collegial due to its smaller size. Rank-­and-­file minority members are almost never a ­factor. “If the issue is purely local,” one Assembly Republican told us, “that is if it only affects my district, I can sometimes get something done. And if I have a r­eally good idea that I’m willing to let some Demo­crat take credit for it, I can sometimes have some influence in committee. But by and large members of the minority party around ­here are not part of the lawmaking pro­cess. We just d­ on’t count.”

The Speaker Article 3, section 9 of the state constitution provides for the election of a Speaker of the Assembly and empowers the body to establish its own rules. The Speaker also is recognized in article 4 as fourth in line ­behind the lieutenant governor and president of the Senate in the event of the death, impeachment, or resignation of the governor. ­These are the only two constitutional references to the office. The Speaker’s powers and duties derive almost entirely from rules ­adopted by the Assembly. Election of the Speaker is the first item of business following the governor’s state of the state address. Most of the time, the outcome of the vote is known, as party caucuses already have chosen the Republican and Demo­cratic candidates. U ­ nder the “unity rule” commonly enforced by both parties, all members are pledged to vote for the candidate receiving the most votes in the party conference. Thus the nominee of the party with the most seats is an almost sure winner. We say “almost sure” ­because the “unity rule” does not always

N e w Yo r k ’ s L i v i n g Co n s t i t u t i o n , a n d B e yo n d

153

work. In 1965, for example, a split in the Demo­cratic Party produced two Demo­cratic candidates for Speaker, creating a deadlock that para­lyzed the legislature for months. In 2008, ­after the Demo­crats seemingly took power in the Senate, four party members refused to accept the unity rule, thus putting them in a position to bargain with both parties for special benefits. As discussed in chapter 3, an even more awkward arrangement evolved in 2011 when another group of four Senate Demo­crats broke away from their party leaders (then in the minority) and formed the In­de­pen­dent Demo­cratic Conference. Expressing dissatisfaction with their party leadership, the IDC also began to caucus with the Republicans, who had retaken control of the Senate in the 2010 elections. The move proved fruitful for the breakaway faction for almost eight years, but three-­quarters of its members ­were defeated in party primaries supported by “mainline” Demo­crats who took back the Senate in 2018. In keeping with the above tradition and despite Governor Cuomo’s ­earlier intervention to peacefully end the intra-­party split, the results for surviving IDC members ­were not rewarding, as the new Demo­cratic leadership handed loyal party members committee chairmanships and other perquisites once enjoyed by the dissidents. In their study of legislative leadership in the US states, Malcolm Jewell and Marcia Whicker place New York among the strong leadership states. In institutional terms, the New York legislature confronts a strong governor but is other­wise in­de­pen­dent and supported by strong party rules and traditions. Party leaders are in­de­pen­dent of outside control and command highly cohesive, polarized parties. All of the impor­tant tools of leadership, from complete control over committee assignments and staffing to access to campaign funds, are abundantly available in New York.44 So close are party whips and other leaders in New York—­a phenomenon that in other states has produced a fragmentation of power—­they actually serve to strengthen the hands of New York Speakers and majority leaders. In many states, for example, the professionalization of the legislature has given individual members greater in­de­pen­dence. Alan Rosenthal argues, “The natu­ral state of a legislature is fragmentation. But in a number of re­spects, the legislature is even more fragmented ­today than twenty years ago. E ­ arlier, leaders w ­ ere truly in command, and power was tightly held. Partly as a consequence of modernization and reform, legislatures have become demo­cratized. Resources are more broadly distributed, and the gap between leaders and other legislators is broader.” 45 He shows how increased staffing gives an individual legislator the tools to stake out an individual policy position or a committee the resources to act on its own. In New York, however, most of the impor­tant staff ­people are, in effect, agents of the party leaders. Each impor­tant committee has its own counsel,

15 4 C h a pt e r  5

appointed by the committee chair, but also has a second counsel or program staff person appointed by the party leader. The real heavy lifting in terms of policy research on impor­tant issues is routinely conducted less by committee staff than by the program staff appointed by and responsible to the party leaders. Committees are not trivial in New York, and ­there are rank-­and-­file members whose staff persons have considerable influence. Yet the pervasive source of all real power—­the ­people who count in the crunch and whose preferences prevail in cases of conflict—­are t­ hose closest to the leadership. In New York, in contrast to almost ­every other state, the growing professionalism of the legislature has served to further centralize rather than disperse power. Another f­actor cited by Jewell and Whicker as impor­tant in affecting the powers of party leaders also seems to have worked differently in New York. The decline of “the strong urban party machines that existed in many Northeastern and Midwestern states,” they argue, “had a significant impact on state legislative institutions. . . . ​Some of ­these organ­izations instructed their legislators on how to vote, contributing to legislative party discipline.”46 Such instructions ­were not at all uncommon in New York. Instead of increasing party discipline, however, the urban (and rural) machines tended to erode it by using their voting blocs in the state Assembly and Senate to cut deals. In New York, it was the decline of power­f ul local organ­izations that gave the legislative party leaders their power. One final source of leadership power derives from the Speaker’s nearly complete control over the agenda. Only the governor can issue a “message of necessity” that allows bills to be considered late in the legislative session; in all other ­matters of scheduling the authority of the party leadership is complete. Technically, the Assembly Rules Committee controls the flow of business, as does its Senate counterpart; the committees decide what bills get to the floor of the Assembly and when. On paper, the Rules Committees are committees. In fact, ­until they ­were reformed in 2005, they seldom met. “Rules Committee? I was the Rules Committee,” as one former Speaker told us in 2001. While this is no longer true, ­because both the Senate and Assembly Rules Committees consist of the party leaders’ most trusted colleagues, they have almost never made a difference. Other party offices in the Assembly vary in importance largely as a function of the personal style and preferences of the Speaker. Generally, the majority leader is the only other member of the majority party whose formal position augurs real clout. Usually a close confidant of the Speaker, the majority leader is officially next in line to become Speaker in the event of a vacancy, but Stanley Fink is the only majority leader since the 1960s to have actually won the speakership. What has happened in recent years is that the

N e w Yo r k ’ s L i v i n g Co n s t i t u t i o n , a n d B e yo n d

155

Demo­cratic majority balanced New York City’s lock on the office of Speaker with a corresponding tendency to award the majority leadership to someone from upstate. That pattern has held steady since the late 1970s, when Speaker Fink hailed from Brooklyn and Majority Leader Daniel Walsh came from Franklinville (1979–­1987). The pattern has repeated through the speakerships of four downstate members in the Assembly—­the current Speaker being the Bronx’s Carl Heastie, who named Buffalo’s Crystal People-­Stokes as his second-­ in-­command when her Rochester pre­de­ces­sor, Joseph Morelle, left the body to take the congressional seat he won in 2018. The Speaker rarely appears on the Assembly floor, and the majority leader—­with his seat on the aisle directly wired to the podium—­typically conducts the daily flow of Assembly business.

The Senate Majority Leader Technically, the lieutenant governor—­also known in the constitution as “president of the Senate”—is the presiding officer in the upper h ­ ouse, with the majority leader carry­ing the official title of “temporary president.” In fact, the rules of the Senate give all real power to the majority leader, who effectively controls the Senate as the Speaker does the Assembly. When Hugh Carey’s lieutenant governor, Mary Ann Krupsak, sought to name who would preside if she was not pre­sent, Majority Leader Warren Anderson took her to court. He won. His explanation of why the case was brought is instructive. According to Anderson, “I d­ idn’t care who was actually presiding. That w ­ asn’t the point, though she thought it was. If we ­didn’t like the ruling by Mary Ann or any other Lieutenant Governor, we could move to overrule the position of the chair. I was concerned that if she was the only person with the power to name the one to preside in her absence, she could, by not naming anybody to preside, keep the Senate from meeting or acting at all. She d­ idn’t agree, so we took her all the way to the Court of Appeals and they de­cided in our f­ avor. That’s why I’m the Temporary President.”47 The differences between party leaders in the Senate and Assembly are almost exclusively a function of size. Even with forty other majority members supporting her, Senate Majority Leader Andrea Stewart-­Cousins relies more on informal and face-­to-­face negotiations than does her Assembly counterpart Carl Heastie. The formal structure of the party organ­ization is less elaborate and usually less meaningful in the Senate. In par­tic­u­lar, the role of the deputy majority leader is not as clearly institutionalized as that of his counterpart, the Assembly majority leader. More often than not, this ambiguity has allowed deputy leaders in the Senate to play more pronounced po­liti­cal roles as heirs apparent to the party leaders. In practice, deputies have used their expanded

15 6 C h a pt e r  5

latitude to shape the ideological messages of the conferences through aggressive fund­rais­ing efforts that can influence primary election fights facing ju­nior members, while at the same time securing their right to succeed Senate leaders on both the Demo­cratic and Republican sides—­something that does not typically happen in the Assembly, as noted e­ arlier. Prior to the Demo­crats reclaiming a majority in the Senate, Senator Michael Gianaris of Queens used his position as Andrea Stewart-­Cousin’s deputy to drive the party’s messages to the left, creating wedges between the conference’s Demo­crats and the IDC’s Jeff Klein. In the 2018 primaries, the Gianaris faction prevailed in six of eight IDC districts, and the Demo­crats have controlled the body ever since.48 In both h ­ ouses, the par­tic­u­lar leadership style of the Speaker or Senate majority leader says more about the distribution of power than any orga­nizational chart. A t­able listing and describing such offices as Deputy Speaker, majority whip, or conference chair can be misleading. T ­ hese party officers sometimes do have real power and—­not insignificantly—­are often paid more than rank-­and-­ file members, but the methods that party leaders use to communicate with party conferences have virtually nothing to do with orga­nizational charts, titles, or formal rules. The official party “whips”—­legislators technically responsible for “whipping” party members into line—­sometimes actually play that role. But as one Assembly Republican told us, ­people who are known to be close to the leader are at least equally influential—­“­whether you get hit by the whip or the whap, it means the same t­ hing.” As a group, individual senators are more impor­tant than individual Assembly members. This is only in part a function of size. B ­ ecause t­here are fewer than half as many senators, in a certain sense each of them is twice as impor­tant. As in the US Congress, however, ­there is also a more individualistic tradition in the Senate, a tradition that extends even to the minority party. On impor­tant issues, Senate minority members are as far out of the loop as their Assembly counter­ parts, ­whether they are Republicans or Demo­crats. However, a tradition of reciprocity gives them a voice that minority members in the Assembly envy.

Committees Despite the 2018 Demo­cratic takeover of the Senate, most members of the upper ­house may enjoy some influence as committee chairs, ranking committee members, or as party functionaries irrespective of their party labels. Only about 40 ­percent of the Demo­crats in the Assembly majority are similarly blessed. The ability to appoint all committee chairs and members is often cited as a key source of power for party leaders. It also was mentioned in most interviews as a source of considerable tension. “It was,” said one leader, “the hardest t­ hing I had

N e w Yo r k ’ s L i v i n g Co n s t i t u t i o n , a n d B e yo n d

157

to do.” To avoid hurting colleagues or making enemies within their own parties, most party leaders have rather closely followed se­niority rankings in choosing committee chairs. “­There have been very few times,” said one Speaker, “when the ­people whose se­niority turn came, ­were in fact passed over.” Another insisted that he had “never” once v­ iolated se­niority despite the fact that he had actually dismissed two chairs. “Yes,” he said, “but they both got promotions.” What this meant was that in both cases they ­were given party functionary titles that carried bigger stipends (known as “lulus”—­compensation received in lieu of salary—­which are now ­under the proverbial microscope as legislative pay raises continue to be debated in Albany) than their chairmanships did. Nevertheless, ­these titles ­were meaningless in terms of power. Despite the centralization of power in New York’s party leaders, the standing committees of the Senate and Assembly play a surprisingly impor­tant role in the crafting of public policy. Many committee chairs and quite a few rank-­ and-­file members have developed considerable degrees of expertise on their committees. Some, of course, are more impor­tant than ­others, and complaints about being bypassed or ignored by party leaders are not uncommon. But committees in New York have an almost unique gatekeeping role. In California and many other states, all bills referred to committees must be reported back to their parent bodies. Thus a bill referred to the Senate Transportation Committee, no m ­ atter how ridicu­lous, must return to the Senate floor. The bill comes from the committee with a “do pass” or “do not pass” recommendation, and most “do not pass” bills are killed in a ­matter of seconds, but they do get to the floor. In New York, as in the US Congress, most bills referred to committees die t­ here, and a bill that cannot command a majority in committee is highly unlikely ever to be seen again. About 90–­95 ­percent of bills referred to committees die in committee; however, in Congress—in contrast to the New York legislature—­a determined majority can force a bill to the floor. In New York, only the leadership has the tools to bring ­these bills back.

The Many Systems of Local Government More than a quarter of the New York Constitution is devoted to local governments. No state, aside from California, has more units and more types of units of local government than New York (see t­able 5.1). New York’s 1777 constitution continued the charters of local governments conferred by the King of ­England, and it continued the practice of granting the governor (and legislature) the power to appoint local officials. The constitutions of 1841 and 1846 granted increasing powers to local governments but still in the context of central control.

15 8 C h a pt e r  5

­Table 5.1  Local governments in New York General-­purpose local governments: 1,585 Counties: 57

Largest =

Kings: 2,600,747

Smallest =

Hamilton: 4,575

Cities: 62

Largest =

New York: 8,601,186

Smallest =

Sherrill: 3,036

Towns: 932

Largest =

Hempstead: 768,057

Smallest =

Red House: 42

Villages: 534

Largest =

Hempstead: 53,891

Smallest =

Deering Harbor: 11

Special-purpose local governments: (20,000+) School districts Fire districts Other special districts

732 886 N/A

Local public authorities: 519 Local development corporations Housing Industrial development

315 95 109

Town special districts: (7,000+) Lighting

1,800

­Water

1,600

Sewer

1,200

Fire protection Other

980 1,400

Source: 2015 New York State Statistical Yearbook; vari­ous reports of the New York State Commission on Local Government Efficiency and Competitiveness, www​.­nyslocalgov​.­org; New York State Comptroller, Division of Local Government Ser­vices in New York, “Background Trends and Issues” (Albany: Office of the Comptroller, 2007). Note: ­These figures are approximations and do not include New York City’s five boroughs. N/A = Not available.

Not ­until 1867 did the concept of “home rule” emerge as an operative doctrine. “The meaning of home rule,” as Galie rather dryly but accurately notes, “depends on the context in which it is used. Broadly conceived it refers to the ability of local government to perform functions and activities traditionally undertaken by ­these governments without undue interference by the state. Home rule powers refer to the constitutional and statutory powers to enact local legislation and carry out the duties and responsibilities of the local government.”49 Few issues proved more difficult to resolve at the 1867 convention than ­those arising over the issue of home rule. The internal tensions manifested ­there between proponents of home rule, who saw the extension of state power as a

N e w Yo r k ’ s L i v i n g Co n s t i t u t i o n , a n d B e yo n d

159

necessary antidote to municipal corruption, w ­ ere to remain prominent issues well into the twentieth ­century. As noted in chapter 2, New York’s almost unique mix of local government traditions—an amalgam of Dutch and British traditions overlaid with the township provisions of the Northwest Ordinance—­ established a complicated grid of towns, villages, cities, counties, townships, and boroughs that few states can match. The sizes and shapes of the state’s towns, villages, cities, and towns has less to do with any kind of constitutional plan than with historical circumstance. Some local governments—­such as t­hose of New York and Albany—­can trace their roots to colonial charters granted as early as 1686. Counties also predate the Revolution and ­were created to build such public facilities as court­houses and orphanages. U ­ ntil the US Supreme Court ruled that legislatures must be based on a system of equal repre­sen­ta­tion, most counties ­were governed by boards of supervisors consisting of one delegate from each town. Some county boards of supervisors still meet with each town supervisor casting a weighted vote, but most have transitioned to a system in which ­there is a county legislature, elected by districts of equal population, and an elected or appointed county executive. Most cities in New York are governed by a mayor-­council form of government, usually with a “strong” mayor (i.e., a separately elected official with clear bud­getary and executive powers). The council-­manager form—­which enjoyed a wave of popularity at midcentury—­replaces the mayor with a professional city man­ag­er who serves at the plea­sure of the elected council. Despite the usual connotation of the name, towns are not necessarily small. The Town of Hempstead, for example, is larger in both size and population than the cities of Buffalo, Rochester, and Syracuse. As a rule, towns are governed by a council elected at-­ large (rather than by districts as in most cities), and a town supervisor who sits on the council and performs vari­ous administrative duties. In some counties, the town supervisors collectively constitute the county board of supervisors. Villages add a more complicated level to the mix b­ ecause they often overlap the jurisdictions of towns and cities. Historically, villages w ­ ere formed to perform special functions such as zoning or providing police and fire ser­vices. Governed by an elected board of trustees, villages typically are l­ imited in their powers to the purposes for which they w ­ ere created. While many villages continue to exist—­and a new one was created by the legislature as recently as 1998—­their functions have largely been supplanted by a bewildering variety of special districts. In the nineteenth ­century, the drive to create new units of local government was based partly on demographic changes. As previously underpopulated areas ­were more densely settled, the demand for the kinds of public ser­vices provided in other areas increased. The increasing need for

16 0 C h a pt e r  5

centralized ­water and sewage systems, and for such newly developed functions as electricity and mass transit, produced concomitant demands for the creation of local ser­vice agencies. By the time of the G ­ reat Depression, most New Yorkers lived in incorporated communities or officially or­ga­nized towns, villages, or cities. Yet new local governments w ­ ere created at an accelerating rate. The explanation for this surge is found in a dramatic increase in the number of special district formations, which occurred for essentially two reasons. First, politicians—­ strapped for resources as tax collections slowed—­needed to borrow funds to provide essential ser­vices. By the early 1930s, many local governments w ­ ere already at the maximum level of borrowing allowed ­under the constitution. One way of evading t­ hese limits was to create new units of local government that could tap new lines of credit. Second, the federal government created an incentive for special districts passing a variety of laws—­particularly in the areas of soil conservation and housing—­that required the creation of bond-­ funded local housing authorities and soil conservation districts to be eligible to receive matching funds. As governor and ­later as president, Franklin D. Roo­ se­velt was an enthusiastic proponent of special districts as a way to avoid municipal defaults during the Depression. In 1934, he sent a letter to governors urging them to create public corporations that could employ revenue bonds. He urged the creation of w ­ ater, sewer, and electric light and power districts. Roo­se­velt explic­itly argued that ­these governments should be used to circumvent debt limits and referendum requirements for the issuing of bonds. He also dispersed funds enabling legislation for housing authorities and soil conservation districts.50 The pattern continues. While the national number of townships, counties, and municipalities has remained relatively constant since the 1940s, the number of special districts soared from about 8,000 in the 1940s, to 18,000 in the 1960s, and to nearly 30,000 in the 1980s.51 New York alone has more than ten thousand local entities, not including the thousands of public and interstate authorities that are governments in all but name. It is impor­tant to recognize that none of ­these structures are ­etched in stone. Home rule notwithstanding, local governments remain the creatures of the state: what the legislature giveth it can taketh away. But despite the work of a commission appointed by former governor Spitzer showing how much could be saved by consolidating some local entities and abolishing ­others, the chances of significant reductions are slim. Governor Andrew Cuomo likewise favored consolidation of local entities; however, they ­were remarkably resilient even in the face of the governor’s annual bud­gets. Home rule—­like federalism and much of what is practiced—is more about politics than it is about constitutions.

N e w Yo r k ’ s L i v i n g Co n s t i t u t i o n , a n d B e yo n d

161

The Judiciary The constitution of 1777 created a decentralized court system that relied heavi­ly on state trial courts (known collectively as the supreme court) and local justices of the peace. In 1821, the supreme court was divided into trial and appellate jurisdictions. It was not ­until 1846 that New York created a single court of last resort, equivalent to the supreme courts of most other states but known in New York as the Court of Appeals. Originally comprising eight elected judges, the Court of Appeals now consists of seven judges appointed by the governor with the consent of the State Senate to fourteen-­year terms. The chief judge presides over the court and serves as chief administrator of the state court system as a w ­ hole. In this latter role, the chief judge is assisted by an administrative board, consisting of the four presiding justices of appellate division, and a chief administrator of the courts, whom the chief judge appoints. Since 1977, all of New York’s many state and local courts have been administered and funded by the state. A special commission report characterized the judicial system in New York State as “the most archaic and bizarrely convoluted court structure in the country.”52 ­Little has changed. The system continues to defy logic and costs too much to run. As in most states, the system includes two levels of trial courts of general jurisdiction. At the higher level are the county courts and the trial division of the supreme court. Relative to the state’s high cost of living, judges’ salaries ­were historically not very high. In 2010, however, the Court of Appeals ruled that the legislature’s failure to raise judicial salaries illegally interfered with the judiciary’s in­de­pen­dence in the constitutional separation of powers. The legislature funded the court-­mandated 25 ­percent increase and also created a special commission on judicial compensation to meet e­ very four years beginning in 2011. Although the 2019 meeting of the commission denied the judges’ request for a cost-­of-­living increase, previous raises have made New York’s judges the highest paid among the fifty states, at $210,900 a year. For many of the state’s more se­ nior and highly regarded ­lawyers, this is far less than they can earn in private practice, but it is a sacrifice many appear willing to make.

Court Reor­ga­ni­za­tion As chief administrator of the state courts, Chief Judge Jonathan Lippman followed his pre­de­ces­sor, Judith Kaye, who in turn followed Sol Wachtler in taking a strong interest in court reor­ga­ni­za­tion. All three w ­ ere marginally successful in implementing a number of small reforms, and until her retirement in 2022, chief judge, Janet DiFiore, continued the pro­cess of trying to rationalize and streamline an incredibly complicated, layered judicial system in the state.

16 2 C h a pt e r  5

­ omputerization has reduced the backlog of criminal cases substantially, as has C the creation of special drug treatment courts in a number of jurisdictions. Experiments with a variety of quasi-­judicial panels also have proven effective in displacing formal ­trials with less contentious, cumbersome, and costly arbitration sessions. A jury reform program eliminated exemptions from jury ser­vice, raised the daily stipend, and ended mandatory rules on sequestering. But the larger, widely recognized structural prob­lems of the system—­many of them requiring constitutional amendments—­have remained untouched. The constitution’s establishment of a unified court system remains “a constitutional fiction,” as one former chief judge described it. “New York has an inheritance of a colorful but confused and sprawling mass of eleven trial courts” that are generally agreed to be among the least efficient in the country.53 Reor­ga­ni­za­tion proposals have failed in the past when they have been folded in with efforts to remove more judicial positions from the electoral pro­cess. Echoing key legislators on both the Assembly and Senate judiciary committees, the two latest chief judges have insisted on decoupling the issues of court reor­ga­ni­za­ tion and elections while supporting a general reor­ga­ni­za­tion plan. Still, agreement in princi­ple has not meant agreement in fact. For example, tangential issues, such as ­legal repre­sen­ta­tion for the poor, repeatedly have prevented reor­ga­ni­za­ tion from moving through the legislature. More recently, civil rights debates, over issues such as ending cash bail, closing Riker’s Island in New York City, solitary confinement, and a host of other criminal justice reforms, have changed the judicial pro­cess without substantially affecting the structure of the courts. The sheer size and complexity of New York’s court system is staggering. Its website lists eleven dif­fer­ent kinds of courts, with roughly 1,350 judges and fifteen thousand other employees (such as clerks, court reporters, and security guards), that h ­ andle nearly three million cases a year, along with t­ hose disposed of by more than 1,800 town justices. Confusing and sometimes overlapping jurisdictions can create a situation in which someone seeking a divorce on the grounds of child abuse would have to go to a supreme court for the divorce, ­family court for custody, and criminal court for abuse. Repeated efforts at reform have been blocked due to partisan disputes about which court locations would be eliminated, consolidated, or enlarged and by the need for any changes to be made through the complicated pro­cess of amending the constitution.54

The Rights of New Yorkers Among the original thirteen states, New York was among the last to adopt a formal bill of rights. In modern times, it has been a trailblazing state in both formally protecting and generally respecting individual liberties. ­There is no

N e w Yo r k ’ s L i v i n g Co n s t i t u t i o n , a n d B e yo n d

163

paradox, however. As the most ethnically, religiously, and culturally diverse of the thirteen original states, New York has long been among the most tolerant. Its early constitutions ­were based on the premise that a government of ­limited powers could not and would not intrude on individual liberties. The 1777 constitution specifically guaranteed only a ­limited right to vote, the right to a jury trial, and religious liberty. The need for further protections resulted in each succeeding constitution substantially expanding both the substantive and procedural rights of New York State citizens guaranteed in the written constitution. Even where the state constitution is s­ ilent or its provisions are identical to ­those of the federal bill of rights, New York’s courts have tended to be relatively liberal in deciding questions of individual liberty. Students of constitutional law often distinguish between “substantive rights,” such as freedom of speech, which pertain to what the state must allow p­ eople to do on their own, and “procedural rights,” which define how t­ hings are done by the state. With re­spect to the most fundamental rights of individual freedom, article 1 of the New York Constitution differs from the national bill of rights in two impor­tant re­spects. First, article 1 covers a substantially broader range of protected liberties, including the right to vote, to belong to a ­labor ­union, to be educated at public expense, and even to have a decent standard of living. Long before the US Supreme Court began its assault on racial segregation and Congress passed its first civil rights laws, the 1938 New York Constitution provided that “no person ­shall, b­ ecause of race, color, creed or religion, be subjected to any discrimination in his civil rights by another person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state.”55 Second, New York’s bill of rights, unlike the US bill of rights, is stated largely in positive terms. Thus, where the US Constitution’s article 1 prohibits Congress from enacting laws abridging speech, freedom of religion, and so on, New York’s bill of rights locates ­these rights in the ­people. Section 3, on religion, for example, begins with the words “the ­free exercise and enjoyment of religious profession and worship, without discrimination or preference, ­shall forever be allowed in this state to all mankind.” Contrast this with the more circumspect phrasing of the federal First Amendment: “Congress ­shall make no law respecting an establishment of religion, or prohibiting the ­free exercise thereof.” Not surprisingly, given its liberal tradition, New York State tends t­ oward a more liberal interpretation of questions involving individual liberties even when the language of the state constitution is not substantially dif­fer­ent from the federal Constitution. As noted in a New York Court of Appeals ruling, Freedom of expression in books, movies and the arts, generally, is one of ­those areas in which t­ here is a g­ reat diversity among the states. Thus it

16 4 C h a pt e r  5

is an area in which the Supreme Court has displayed g­ reat reluctance to expand Federal constitutional protections, holding instead that this is a ­matter essentially governed by community standards. . . . ​However, New York has a long history and tradition of fostering freedom of expression, often tolerating and supporting works which in other States would be found offensive to the community. . . . ​Thus the minimal national standard established by the Supreme Court for First Amendment rights cannot be considered dispositive in determining the scope of this state’s constitutional guarantee of freedom of expression.56 Interestingly, the state’s courts have not been so expansive in applying some of the constitution’s unique guarantees. The state’s 1938 provision against discrimination (section 11) was not only among the first such guarantees in the United States but also unique in prohibiting any private “person . . . ​firm, corporation, or institution” from violating an individual’s civil rights. In 1948, when an African American c­ ouple was denied housing in Manhattan’s Stuyvesant Town apartments, the Court of Appeals held to the very narrow argument that housing was not one of the civil rights protected in the constitution. A summary of the court’s ruling in Dorsey v. Stuyvesant Town (1949) notes that “since t­ here was no statute recognizing the opportunity to acquire real property as a civil right, the court concluded that the section could not apply to individuals in the appellant’s situation. . . . ​In effect the court said the clause is not self-­executing; for its prohibitions to be effective, legislation is necessary.”57 Similarly, New York’s famous section 1 of article 17, which seemingly establishes a state obligation to provide for the aid, care, and support of the needy, effectively was rendered meaningless by the courts’ rulings that it is up to the legislature to decide who is ­really needy.

Procedural Rights During Supreme Court Chief Justice Earl Warren’s tenure (1953–1969), the Court substantially expanded its interpretation of the F ­ ourteenth Amendment to make several federally protected rights applicable to the states. States ­were required, for example, to provide even the poorest defendants with the right to counsel; local police ­were forced to warn defendants of their rights before questioning them; and states ­were expected to avoid unreasonable searches and seizures. ­These court rulings w ­ ere highly controversial. They are, however, less controversial in New York than in most other states ­because New York ­either has a similar guarantee in its constitution or ­because its Court of Appeals already

N e w Yo r k ’ s L i v i n g Co n s t i t u t i o n , a n d B e yo n d

165

has inferred such rights. If you are formally accused of a crime, you have a better chance of defending yourself in New York than in almost any other state. Although the rights of criminal defendants are better protected in New York than in most other states—­and more protected than federal guidelines require—­the differences are subtle. For most p­ eople, most of the time, it would make ­little difference in the twenty-­first ­century ­whether you w ­ ere arrested in New York or Mississippi. In both states, the police—­following the US Supreme Court’s ruling in the case of Miranda v. Arizona—­must read you your “Miranda” rights, advising of your rights to remain ­silent and to seek the help of counsel. In both states, following federal guidelines, you have the right to counsel, to be ­free from unlawful detention (habeas corpus), to be informed of the charges against you, to not be unreasonably detained without indictment, and to confront key witnesses against you. While all of ­these rights pertain ­today in all fifty states, most of them date back in New York to the 1821 or 1846 constitutions, a time in which such guarantees ­were less common. What prob­ably accounts for New York’s liberal reputation in the area of procedural rights is its weighty history of case law founded in state—as opposed to federally mandated—­constitutional rights. New York’s 1821 constitution, for example, is identical with the due pro­cess clause of the federal Fifth Amendment: “No person s­ hall be deprived of life, liberty, or property without due pro­cess of law” (article 1, section 6). The federal due pro­cess clause was only recently applied to the states and generally has been held to apply only when t­here is so-­ called state action. The state due pro­cess clause, with more than 175 years of case law development, “has been construed to provide broader rights than the federal provision.”58 And it is arguably broader than that of most other states, particularly ­those whose “due pro­cess” rights derive solely from federal court imperatives. One of the most in­ter­est­ing areas of procedural rights in New York—­ provisions regarding search and seizure—is particularly instructive as to the “real” meaning of the constitution. Prior to 1938, the state had no constitutional guarantees against unreasonable searches. The amendment ­adopted (section 12) is almost identical in wording to the federal Fourth Amendment but adds an in­ter­est­ing and progressive set of restrictions on wiretapping. Still, the New York Constitution falls short of federal practice ­because it does not include the so-­called exclusionary rule, ­adopted by federal courts in 1961. New York’s 1938 convention explic­itly rejected a proposal “supported by Governor Lehman and ­others, to prohibit the use of unreasonably obtained evidence” in court.59 What the delegates declined to do, the Court of Appeals went ahead and did anyway. By conflating emerging federal doctrine, a ­little case law, and

16 6 C h a pt e r  5

its own thinking on the issue, the court essentially added the exclusionary rule to the constitution, which did not originally include it. We reemphasize that the constitution of a state is not simply a text. It is a living corpus of formal parchment, statutory and court interpretations, and ­actual state practices.

Changing the Constitution Although the US Constitution has been amended twenty-­seven times, most scholars agree that legislative and judicial interpretations of the basic document have been more impor­tant sources of fundamental change than written amendments to the text. Change of this kind is not unknown in New York, but b­ ecause state constitutions are so detailed, laws that could be passed as s­ imple statutes in Washington must be added as constitutional amendments in most states. Unlike the 230-­year-­old federal Constitution, state constitutions are often fully revised. The New York Constitution ­adopted in 1938 has been amended 137 times in the intervening years. As in other states, the amendment pro­cess in New York is designed to make it considerably more difficult to change the constitution than to pass an ordinary statute. The federal constitution requires a two-­step pro­cess of amendment involving, first, passage of the proposed amendment by a two-­thirds majority of both ­houses of the Congress and, then, ratification by three-­fourths of the states. Alternatively, the states may convene a constitutional convention to revise the w ­ hole document. In seventeen states, citizens may bypass the legislature by placing a proposed amendment directly on the ballot if enough registered voters sign a petition to do so. This process—­known as the initiative—is not permitted in New York, where only the legislature can authorize a referendum. In twenty states, a majority in both ­houses is all that is required to propose a constitutional amendment. About the same number of states require a two-­thirds vote, although some of ­these allow ­simple majorities if they pass identical resolutions in two consecutive years. New York is one of eight states that require a three-­fifths majority in both ­houses. ­Because of its unusual specificity the New York Constitution has not changed as much through practice, statute, and judicial interpretation as has the US Constitution, but a number of significant changes have occurred through such means. Most impor­tant, the rise of the legislature as a coequal of the executive in policy power has taken place without significant change in the written constitution. Many of the most impor­tant extensions of civil rights and liberties have occurred e­ ither through federal rulings that supersede state law or through rulings of the Court of Appeals. Historically, judicial and leg-

N e w Yo r k ’ s L i v i n g Co n s t i t u t i o n , a n d B e yo n d

167

islative action has been a less significant source of constitutional change at the state level than at the national level, but the courts have shown a growing inclination to reinterpret the basic text. It is also true in New York, as in almost all constitutional democracies, that the living constitution is effectively amended almost daily by the acts of elected officials, bureaucrats, and even ordinary citizens. What Bertram Gross and Edward Schneier have called “social vetoes” take place ­every day when a citizen exceeds the speed limit, discriminates in a hiring situation, or cheats on taxes.60 More significantly, public officials frequently defy the constitution or interpret it in light of their own policy preferences. Some of the most significant characteristics of state politics and government are extraconstitutional. The rules of the legislature that vest extraordinary powers in the hands of the majority-­party leaders, for example, are based on only the vaguest of constitutional provisions. Almost ­every academic, journalist, and po­liti­cal activist, along with most politicians in New York, would agree that “the amount of material in the New York State Constitution that is obsolete, incoherent, redundant, or misplaced is startling, not to say embarrassing.”61 Yet ­little of significance is likely to change. The idea of a constitutional convention—­the most efficient road to comprehensive reform—­must confront a classic “co­ali­tion of minorities” prob­lem, in which dozens of diverse interests, acting in part out of fear of one another, can persuade the public that its interests are better served by this archaic relic than by a new document that might permanently harm ­labor ­unions, public schools, gun ­owners, city dwellers, rural areas, farmers, businessmen, and so on. The route of piecemeal change is equally problematic. To amend the constitution without calling a convention, the proposal must be passed by both h ­ ouses of the legislature in separate sessions with a general election in between and then must be ratified by a statewide popu­lar vote. Between 1996 and 2019, the legislature voted to place twenty-­seven proposed amendments on the ballot, twenty of which passed. Most of ­these ­were of trivial significance, allowing the sale of land in the Adirondack Park (not permitted in the constitution), for example, in exchange for a private donation of another parcel of land to the state. The legislature simply lacks the mechanism or the w ­ ill to take on the monumental task of a comprehensive rewrite, leaving the state to muddle through without the kind of clear guidance a modern constitution should provide.

The Living Constitution To the extent that New York differs from New Jersey or Nevada, the major differences are not found in the dif­fer­ent states’ formal constitutions. It makes

16 8 C h a pt e r  5

a difference ­whether a state’s constitution creates few or many electoral rivals to governor and ­whether it gives the office a line-­item veto. It ­matters how much home rule is written into the constitution and w ­ hether ­there is a unified court system. Bills of rights are not just rhe­toric. In most impor­tant re­ spects, however, a state’s living constitution may or may not coincide with the text it calls its constitution. If the social welfare provision of the New York Constitution is the strongest in the nation, it does not mean that “the aid, care, and support of the needy” actually “­shall be provided by the state” (author’s emphasis), as article 17 says. What it means is that advocates for the poor have a somewhat stronger base for arguing their case than would their counter­parts in states without such a constitutional provision. The constitution, like the federal system described in chapter 2, the party system discussed in chapter 3, and the pressure system described in chapter 4, is part of the context within which the policymaking pro­cess occurs, and the constitution provides a road map for the operation of the po­liti­cal pro­cess.

C h a p te r   6

Strug­gles for Power, Position, and Access

In the jargon of Albany, the first step on the road to po­liti­cal influence is becoming a “player.” This circle of players shifts over time and often from one issue to another. As noted in chapter 4, ­there are few generally effective lobbyists, and even the most power­ful groups tend to be issue-­specific. With the exceptions of the governor and the majority-­party leaders in the Senate and Assembly, this is true of the executive and legislative branches as well. Major shifts in power tend to have long gestation periods. The most effective lobbyists, legislators, bureaucrats, and even judges build their reputations brick by brick. Particularly in the legislature, one’s character is continuously weighed: whose word can be trusted, who has access to whom, who knows what. Former Assembly Speaker Stanley Fink argued, “­people gain power, particularly in the legislature, by the accumulation of knowledge—it is, in my opinion, the single surest way that one can gain influence and power.”1 The knowledge Fink describes is not simply substance but how ­things work and whom you can rely on for what. It would surprise most individuals who are not politicians to learn how much t­hese evaluations boil down to questions of trust. Politicians do not usually lie to one another. ­Those who do are very likely to pay for it. As much as they may fudge their positions in public, exaggerate their rec­ords during campaigns, and avoid direct answers to difficult questions, the only real leverage most of them have with one another is their credibility. 169

17 0 C h a pt e r  6

In the long run, credibility, knowledge, and skill are the resources that tend to separate the players from the herd. But ­there are short-­term events—­campaigns and elections, indictments and scandals—­that can destroy the strongest leaders overnight. A ­ fter eight notable years as attorney general prosecuting cases that dealt with corporate white-­collar crime, securities fraud, and environmental protection, Eliot Spitzer won the governorship in 2006 by the largest margin in recent history only to be felled by a sex scandal just fifteen months into his term. Andrew Cuomo enjoyed more influence than most New York governors during his three terms ­until he was forced to resign in 2021 following the attorney general’s lengthy report showing the former governor sexually harassed several ­women. In the State Senate, the late Republican majority leader Joe Bruno retired from his position and was convicted by a jury in 2009 on two counts of wire fraud in a pay-­to-­play scandal involving an entrepreneur from his home district in Rensselaer.2 His successor—­Dean Skelos of Long Island—­was sentenced to prison on federal corruption charges including fraud, extortion, and bribery in 2018. Sentenced to fifty-­one months, he eluded prison when he tested positive for COVID-19  in April  2020, serving the remainder of his sentence ­under ­house arrest. In the Assembly, Sheldon Silver—­regarded by many to be the most power­ful Speaker in the modern legislature, and among the most hard-­nosed—­was forced to step down from the body and a leadership post he had held for twenty-­one years when he was charged and convicted in 2015 for accepting millions of dollars in illegal payments from law clients he served through a private firm where he was si­mul­ta­neously employed. Having evaded jail time for more than five years, he eventually was sentenced to seventy-­eight months, and his request to serve from home was denied by a judge who said he was guilty of “corruption, pure and ­simple.”3

Legislative Party Leadership ­ here are few more revealing events in the legislature than t­hose revolving T around changes in party leadership. ­Because the powers of legislative party leaders are so extensive, ­those legislators who are out of ­favor with their parties are generally without influence. ­These legislators retain the trappings of the office and what­ever impact on public opinion they can exert through press releases, outside activities, and social media. Their votes on issues might sometimes be sought, but a legislator who is out of f­ avor with the leadership is not a player, and a rising tide of insurgents in the Senate and Assembly is unlikely to reshape that imbalance.

St r u g ­g l es f o r P ow e r , P osi t i o n , a n d Acc e ss

171

Formally, the Assembly Speaker and Senate Majority Leader are elected by the full membership of each h ­ ouse, though the majority-­party conference usually controls the vote. When a newly elected legislature takes office ­every other January, choosing the new leaders is the first order of business, even if it is only a ritualistic reaffirmation of the existing power structure. Shortly a­ fter the November election returns become official, the respective parties in each ­house caucus in Albany to choose their candidates for leader. On the first Tuesday ­after the first Monday in January, the newly elected legislature convenes, and each member responds to the roll call by stating the name of the person the member supports. In the Assembly, the elected Speaker is escorted to the podium by the most se­nior member of the majority party and presented with the gavel symbolizing the Speaker’s formal position as presiding officer. The person with the second-­largest number of votes is declared the minority leader. The pro­cess is less formal in the Senate, where the lieutenant governor officially presides. Rules governing each ­house are ­adopted in a routine carryover from previous sessions. The pro­cess of maneuvering that precedes t­hese votes—­though barely vis­i­ble to the public—is one of the most fascinating in politics. Leadership is a position that is won essentially by accumulating sufficient individual commitments from party colleagues within the caucus. The pro­cess is not necessarily confined to the party conferences. In 1964, Demo­crats won the majority in both ­houses for the first time in almost a ­century. A revolt over the prospective Senate Majority Leader ensued seeping into the Assembly, and resulted in a fight between the Demo­cratic county chairs in New York City and Mayor Robert Wagner. This fight tied up the legislature for months. With no elected leaders and no committees appointed, no legislative business could be conducted. The impasse was fi­nally broken when Republican governor Nelson Rocke­fel­ler asked the Republican minorities to vote for Demo­ crats Anthony Travia for Speaker and Joseph Zaretzki for majority leader. The specter of this fight still resonates, putting strong pressure on the party caucus to seek consensus lest they lose control of the pro­cess entirely. That appears to have happened in 2011 when a group of four Demo­cratic senators broke with their party and formed the In­de­pen­dent Demo­cratic Conference by caucusing with a dwindling Republican Party, giving the Republicans the ability to control the upper h ­ ouse ­until 2019.4 Generally, no m ­ atter how strong the party’s internal divisions are, its members ­will come together to support the winning conference candidate in the full ­house. As evidenced by such events and a protracted internal ­battle among Senate Demo­crats in 2008–2010, it is seldom an easy pro­ cess, and the wounds can be slow to heal.

17 2 C h a pt e r  6

For individual members, t­here is nothing more terrifying or exhilarating than a leadership fight. Being on the winning side can turn an obscure legislator into a player overnight, and vice versa. With county leaders no longer able to deliver blocs of votes, stronger roles are played by personal friendships, regional and ideological differences, and chances for individual advancement. Increasingly, the Black, Puerto Rican, Hispanic, and Asian Legislative Caucus negotiates as a bloc, enhancing the leverage of its members. However, in the final analy­sis, all lawmakers realize that their individual votes might change the direction of their ­careers. In most leadership races, voting is not secret, and as much as a member may try to avoid firm commitments, ­there comes a point in the meeting when the member must stand up and declare a choice.

The Rules of the Game The politics of leadership succession can proceed through one of two scenarios: one in which ­there is sufficient lead time for bloc-­by-­bloc co­ali­tion building, and a second more frenzied scenario when the ­actual or impending death or resignation of the party leader dramatically compresses time and deliberation into a flurry of hurried conversations among party members that is over almost as fast as it begins. In this case, the field of potential candidates narrows rapidly, and perceptions of power—­and having the necessary votes—­ become more impor­tant. This scenario tends to f­ avor the inner circles of the departing leaders. The day Senate Majority Leader Joseph Bruno announced his retirement in 2008, for example, one se­nior member began calling his friends to ask for support, even though it became immediately apparent that Deputy Majority Leader Dean Skelos was next in line. When Skelos was forced to step down from his post as Senate majority leader in 2015, leadership succession in the upper ­house was complicated by an unusual power-­sharing arrangement between Republicans and the breakaway IDC. Breaking with a long-­standing tradition of elevating the most se­nior members to high-­ranking leadership positions—­mimicking Assembly Demo­crats who selected Carl Heastie to replace Sheldon Silver in 2015—­Senate Republicans passed over an older upstate colleague, John DeFrancisco, in ­favor of John Flanagan Jr. from Long Island. This was an astute choice based on po­liti­cal geography, as the Republicans relied on a makeshift majority with legislators from Long Island and the Westchester county suburbs. Generally, however, se­nior members are the most v­ iable candidates for positions such as Assembly Speaker, Senate Majority Leader, Ways and Means Committee chair, and Finance Committee chair. Se­niority alone is not decisive, as evidenced above but a successful candidate must have a rec­ord of cred-

St r u g ­g l es f o r P ow e r , P osi t i o n , a n d Acc e ss

173

ibility and competence that ­others have learned to trust. Similarly, the Assembly majority leader, the deputy leader in the Senate, and the chairs of the key bud­get committees are almost always in the mix, if only ­because they can influence legislative outcomes and, in some cases, make campaign funds available to their colleagues. More subtly, candidates are invariably members who have been looking (discreetly of course) at the job for years and quietly building up collegial relationships and a core of close supporters. Majority Leader Michael Bragman’s unsuccessful challenge to Silver in 2000 illustrates why incumbents are rarely challenged. ­Unless you have the votes locked up or have de­cided to ­gamble that the Speaker ­will resign, ­there can be no public campaign. Coups against the leadership can begin only with very discreet conversations among close friends and po­liti­cal allies; however, a member whose loyalty to (or fear of ) the incumbent can quickly expose your incipient candidacy. And u ­ nless this point is reached a­ fter you have enough commitments to win, both you and your supporters are susceptible to sanctions. Thus, when Bragman’s challengers w ­ ere flushed into the open and two of his supporters stripped of their committee chairmanships, most of his other commitments dis­appeared. It is unlikely that Bragman—­a shrewd insider—­would have set himself up for failure without having private commitments from a majority of the members of the caucus. Silver was not that popu­lar a Speaker, but in the end Bragman had only twenty announced supporters and eigh­teen a­ ctual votes. Carl Heastie’s rise to the speakership followed Silver’s resignation from the top post, and it was a comparatively transparent process—­with only a few hard feelings when the votes ­were counted.5 Prior to the Republicans’ losing control of the State Senate, the upper ­house saw two successful challenges to incumbent leaders. One involved the replacement of Warren Anderson by Ralph Marino in 1988, and the other the replacement of Marino by Joseph Bruno in 1995, a move promulgated by the new Republican governor, George Pataki. Marino’s challenge to Anderson was based largely on the latter having agreed to a school bud­get that he had not cleared through the party conference. In a coup, Marino assembled a suburban co­ali­tion within hours and forced Majority Leader Anderson to resign. To challenge and embarrass the majority leader is risky business, although d­ oing it on an issue directly linked to the needs of your constituency and ­those of ­others is a more forgivable sin. Marino was quietly able to convince the GOP conference that Anderson was losing touch with rank-­and-­file members, securing a base for Marino’s campaign without directly challenging the majority leader. In their study of state legislative leaders, Malcolm Jewell and Marcia Lynn Whicker suggest that “a tension is likely to develop between the members and

17 4 C h a pt e r  6

Box 6.1  Party Discipline As state Demo­crats convened in Albany on May 17, 2000, to nominate Hillary Rodham Clinton as their candidate for the US Senate, rumors began circulating about a challenge to the leadership of Assembly Speaker Sheldon Silver. By the next morning it seemed clear that Majority Leader Michael Bragman of Syracuse not only intended to challenge the Speaker but that Bragman had the fifty or more votes he needed to win in the Demo­cratic conference when it met the following Monday. By the time of the ­actual vote (on a procedural motion to bring the leadership issue to the floor), only eigh­teen Demo­crats actually stood by Bragman. What happened between Thursday and Monday is not a m ­ atter of public rec­ord, but the decline in Bragman’s support from the fifty-­ three pledges he thought he had on Thursday to the eigh­teen who actually stood with him on Monday is neatly illustrative of powers that inhere in the office of the Speaker and explains why sitting party leaders are so seldom challenged. In a speech to his colleagues following his defeat, Bragman charged the Speaker with using the following tactics to convince p­ eople they should support him and not Bragman: • Stripping committee chairs of their posts and telling ­others that “they have five minutes to express their support to the Speaker or they would lose ­those chairs.” • Saying to an Assembly member’s child who answered the phone, “Tell your ­father that he has fifteen minutes to call the Speaker and change his position or he ­will lose every­thing he has ever cared about in this Assembly.” • Telling members that if they ­didn’t support the Speaker “their districts would be reapportioned and they ­wouldn’t be able to win an election again.” • Threatening t­ hose whose districts had strong party organ­izations that “their petitions w ­ ouldn’t be circulated and primaries would be run against them.” • Threatening not to provide campaign contributions from the Demo­cratic Assembly Campaign Committee. • Encouraging “specially connected lobbyists” and “­union leaders to lobby the members and tell them who they ­ought to vote for and what the consequences would be if they ­didn’t.”6

St r u g ­g l es f o r P ow e r , P osi t i o n , a n d Acc e ss

175

­ ecause two Bragman supporters lost their committee chairmanB ships, we know that Speaker Silver used at least some of t­hese tactics, and it seems likely that he used them all. Most party leaders facing similar challenges would have used them, too. The day ­after the vote, Bragman was evicted from his large ninth-­floor office and moved to one normally allocated to minority-­party freshmen. His staff was cut from the third-­largest in the Assembly to the minimum. Of his declared supporters, only two remained in the legislature for more than five years, and one of them—­despite high se­niority and a long rec­ord of hard work—­never regained a leadership position.

t­ hose individuals who serve long tenure in leadership. . . . ​One reason that some Speakers and presidents retire or run for another office is that they are sensitive to the prob­lem of leadership ladder gridlock.”7 Such gridlock, in which ­there are few opportunities for advancement, is most likely to occur in a legislature such as New York’s, dominated by ­career politicians. Marino’s rapid replacement of some of the Senate’s most se­nior chairs suggested that the 1988–1989 transition had “leadership gridlock” written all over it. A few years ­later, when Marino fell victim to a challenge, a ­g reat deal more than gridlock was involved. ­After George Pataki unseated Mario Cuomo in the 1994 election, US Senator Alphonse D’Amato and chair of the Republican state committee William Powers de­cided that Marino’s time had come. As Marino noted, it was “three against one.” W ­ hether the governor made any direct contacts with former Senate colleagues is unknown, but D’Amato and Powers w ­ ere clearly manning the phones, and t­ here was l­ittle doubt on which side Pataki was. Bruno’s ascension to the leadership went beyond internal Senate politics, involving a governor for the first time since Rocke­fel­ler, in what appears in retrospect a part of a broader realignment of the state Republican Party. Subsequent patterns of Republican leadership change have kept the party’s more moderately conservative members quite firmly in control.

Consolidating Leadership Control Campaigning for a leadership position is part of the pro­cess of learning to be an effective leader. Tom Loftus contends that “it is the campaign for the job that teaches a leader how to ask and how to distinguish a yes from a no. And

17 6 C h a pt e r  6

it is the campaign that teaches the leader how to get a vote.”8 Despite the awesome powers of the office, all party leaders know that their continuing ability to exercise t­ hese powers derives from their continuing ability to maintain the confidence of a conference majority. According to one former Speaker, “leadership is a two-­way street. I think a leader in the legislature t­ hese days in New York would be foolish to underestimate the collective power of individual members. . . . ​­People want to have an opportunity to be heard and take part in the pro­cess. . . . ​I used to hold Demo­cratic Conferences where all members ­were given an opportunity to be heard and no one was cut off. . . . ​­After giving every­body the opportunity to be heard, I generally was well aware of the par­ameters of what I could or could not negotiate on behalf of this group of men and w ­ omen.”9 Few ­people doubt that Assembly Speaker Heastie takes that message seriously or that members of the Demo­cratic Conference in the ­people’s ­house are satisfied with a more inclusive body than the one they may have experienced ­under the very vertical leadership style of former Speaker Sheldon Silver. Similarly, Senate Majority Leader Andrea Stewart-­Cousins has worked hard to proj­ect more of a bottom-up vision of leadership—­something required, perhaps, following the 2018 rise of left-­leaning insurgents in the Senate’s Demo­cratic Party.10 Generally, the most successful leaders are ­those who communicate effectively with their fellow party members, though dif­fer­ent leaders use dif­fer­ent channels. Some meet frequently with the entire conference; ­others make regular use of party steering committees appointed with an eye t­oward the repre­sen­ta­tion of all significant factions in the party. Some meet regularly with committee chairs (or the ranking minority members of key committees), and ­others rely primarily on an informal network of personal allies. Most work at cultivating face-­to-­face connections through such devices “as the development of club-­like atmosphere, the exchange of amenities, the building of personal relationships based on shared experiences, and assistance to lawmakers in their nonpo­liti­cal prob­lems.”11 Most rank-­and-­file members appreciate and rely on the ability of party leaders to facilitate communications. Alan Rosenthal asserts, “Only a legislative leader—­such as the Speaker or the president—­could get four or five impor­ tant ­people to a meeting on short notice. . . . ​Getting p­ eople to show up at a meeting may not appear impressive, but it attests to a leader’s power.”12 Sanctions such as, refusing to move a member’s bill or taking away committee chairmanships or other perks can also be used. ­Because the party leaders’ ultimate powers derive from their ability to command majorities within their conferences, carrots are more frequently employed than sticks and persuasive efforts more than ­either. “The most impor­tant techniques are . . . ​of a po­liti­

St r u g ­g l es f o r P ow e r , P osi t i o n , a n d Acc e ss

177

cal character, such as assistance to members in legislative ­matters (such as passing local and private bills), giving members meaningful debate assignments, granting them extra lulus on staff allotments, interceding with the executive branch on behalf of members or their constituents, and so on.”13 While party leaders cannot give every­thing to every­one, they mea­sure their own effectiveness in terms of their ability to deliver ­these kinds of po­liti­cal payoffs. One Vermont Speaker wrote of his willingness to cater to party colleagues, “My criteria to judge how far I would go to help a member ­were ­simple and straightforward. As long as it ­wasn’t against the law, ­didn’t require that I go to confession, or ­wouldn’t break up my marriage, I did it.”14 On most issues, party leadership involves neither sanctions nor rewards, but rather the basic coherence of the party conference. Party cohesion is neither a function nor even a symptom of party discipline; “the power leaders enjoy ultimately depends on the power a majority of members is willing to delegate to them.”15 New York State legislators seldom can cite instances in which they have felt “pressured” by party leaders to vote one way or another. The rank and file can complain—­and they often do—­about how issues are framed and presented, or about questions of timing and emphasis, but they almost never suggest that they have been forced to vote contrary to their po­liti­cal values. The emphasis in po­liti­cal science on party “discipline” may indeed have it backward. Instead of asking how leaders hold members loyal to the party, the more appropriate question, which arises with greatest clarity in leadership se­lection contests, is “How can backbenchers discipline leaders and get them to promote policies and positions that are to the backbenchers’ liking?”16 Generally, this job begins in committee.

Committee Leadership The work of the legislature is too complex for one person to control. Leaders have no choice but to delegate many of their powers. Some leaders rely on their personal staff or other party leaders, and some—­particularly in the smaller conferences of the Senate and the Assembly minority—on the entire party conference. All leaders afford considerable influence within their spheres of expert knowledge to the members and chairs of the standing committees. It is impor­tant to note that the party leaders control nearly all committee assignments. In New York, in contrast to the US Congress and most other state legislatures, committee membership does not carry over from one session to the next. E ­ very other January, members of the Senate and Assembly anxiously await the pronouncements from the leadership telling them who w ­ ill serve on which committees and who w ­ ill be honored with chairmanships. Party

17 8 C h a pt e r  6

leaders do take such f­ actors as se­niority and previous ser­vice into account. Some committee chairs have held their positions for many years, such as Richard Gottfried, chair of the Assembly Health Committee, who held this post from 1987 to 2022. However, the party leaders’ virtually unfettered ability to manipulate the committee lists remains a hallmark of leadership power in both ­houses of the legislature. Interactions between party leaders and committee leaders reflect a dynamic, sometimes intensely personal pro­cess of building trust and shared perceptions. In return for the powers entrusted to them, the chairs of impor­tant committees are expected to be unusually loyal to the party leader. Events sometimes upset established patterns of committee work, such as when a previously obscure issue gets on the agenda b­ ecause of a gubernatorial initiative or change in federal policy. Generally, some committees are more impor­tant than ­others in creating a defined order among them. Overshadowing all o ­ thers are the Assembly Committee on Ways and Means and its Senate counterpart, the Committee on Finance. Unlike Congress, which separates the legislative pro­cess of raising money from that of appropriating it, many state legislatures h ­ ouse all money issues in a single pair of committees. Thus, any bill that spends or raises money must go through Ways and Means in the Assembly and Finance in the Senate. Quite frequently, a bill is “dual referenced” and sent both to the committee with substantive jurisdiction (such as Higher Education) and the money committees. ­Under a rule ­adopted in 1975, the Assembly Ways and Means Committee chair can require the dual reference of any bill determined to have fiscal implications. The chair of the Senate Finance has the same power. Given the jurisdictional reach of their committees, the chairs and ranking minority members of Ways and Means and of Finance are clearly among the most power­ful legislative leaders in Albany. They are assumed to be next in line for advancement and—­with the occasional exception of majority leaders in the Assembly—­ the second most power­ful members of their respective parties. Codes is the second most impor­tant committee in both h ­ ouses, again b­ ecause of dual referencing. Any legislation that imposes a criminal penalty—­whether a drug bill reported out of the Alcoholism and Substance Abuse Committee that imposes longer sentences or a bill from the Housing Committee that imposes fines on abusive landlords—­must be dual referenced to Codes. But Codes also must deal with issues, such as bail reform, that tap emotions in the electorate that many members would prefer to avoid. A large part of the committee’s work is with very tedious issues of ­legal reasoning. Thus, ­there are members who, understanding its powers, would just as soon not be appointed to Codes. Moving down the list of preferred committees, t­ hese kinds of conflicts become

St r u g ­g l es f o r P ow e r , P osi t i o n , a n d Acc e ss

179

increasingly impor­tant. Obviously, the Agriculture Committee—­which might be enormously appealing to someone from Chautauqua County—­might not be ranked nearly so high by someone from Brooklyn. The Judiciary Committee has a par­tic­u­lar appeal to ­lawyers and deals with issues such as crime that are vis­i­ble and impor­tant. The Senate Judiciary Committee is a particularly attractive assignment with the added power of screening judicial appointments. Members of both ­houses are drawn to the Education Committees ­because they deal with issues of universal concern. The Health Committees are increasingly attractive for the same reasons, especially in the context of federal ­battles over the Affordable Care Act, Medicaid, and the pandemic. Party leaders try to accommodate member preferences, especially when they are good for the members’ electoral fortunes. Leaders know in the long run that maintaining and building their party’s electoral base is what distinguishes being in the majority from the minority. “Top leaders prefer to have committee chairs upon whom they can rely.” And they prefer to give their committee chairs to members with whom they can work effectively. “But leaders are not always f­ree to appoint trusted allies. They have to consider some of the ­factors that govern the appointment of committee members including se­niority, geography, other committee ser­vice, and qualifications.”17 In New York, key committees must balance upstate and New York City, and rural and suburban areas, with Demo­ crats and Republicans, respectively. Demo­crats must consider ethnic balance and gender as well, and for both parties, ideology plays a role. The preferences of interest groups—­even if they are major campaign contributors—­tend to have ­little influence on party leaders, who do not like involving outsiders in what they consider inside business. It was widely believed that one chair of the Assembly ­Labor Committee was stripped of his position ­because he had become too close to the u ­ nions that ­were the committee’s major clients. For many years, committee chairs and party leaders could be ranked by the extra stipends associated with their positions. Party leaders and the chairs of the most prestigious committees w ­ ere paid an additional $30,000 each; however, since the 2019 pay raise was ­adopted, only a handful of members in each ­house receive extra stipends. T ­ here remains an implicit “ranking” of committee assignments that reflects such ­factors as se­niority, diligence, and support for the party leadership. The Rules Committees schedules the business of the legislature, and no bill appears on the floor in the final weeks of session without first obtaining formal permission from the Committee on Rules. ­Until recently, however, the Rules Committees ­were what­ever party leaders made of them. “The Rules Committee? I was the freaking Rules Committee,” one former Speaker told us, and he

18 0 C h a pt e r  6

went on to recount an instance when the Speaker needed time to do a ­little arm-­ twisting among his se­nior colleagues and recessed the Assembly to convene a meeting of the Rules Committee. This threw the members into consternation as they scurried about trying to find out who was on the committee and who was not. ­Until a package of reforms ­adopted in 2005 and strengthened in 2007 took effect, no bill—­not even one approved by another standing committee—­ could be scheduled for floor consideration a­ fter a certain date without clearing the Rules Committee. B ­ ecause that date typically passed during legislative consideration of the bud­get, what it meant was that the Rules Committee (i.e., the leader of the majority party) de­cided which bills would get to the floor and which would not prior to the legislature’s adjournment. ­Today’s Rules Committees, although they sometimes meet, seldom challenge the preferences of party leaders. While the committees are not terribly in­de­pen­dent, they do tend to reflect the full diversity of the party conferences in terms of region, race, ethnicity, and ideology. In the Senate, fully one-­third of the body’s membership serves on Rules, and its thirty-­one-­member counterpart is the largest in the Assembly.

Leadership Styles As noted in e­ very text on the topic, po­liti­cal leadership is highly contextual. “Through their roles strategizing, negotiating, building consensus, and getting the votes,” as Rosenthal argues in his study of legislative leadership, “leaders certainly appear to be at the head of the parade. But what leaders are ­doing, except on special occasions, is leading the parade on the route the members want to take.”18 An in­ter­est­ing aspect of elected leadership is how they discern the wishes of their members, communicate with them, and maintain their trust. At the most fundamental level, a party leader must have sufficient support in the party conference to avoid becoming the target of an active opposition campaign. During divided government, which characterized the legislative and executive branches in New York State u ­ ntil 2019, the ability of party leaders to sustain the support of their own party conferences must be balanced against the sometimes conflicting ability to negotiate effectively with other leaders, in par­tic­u­lar the governor and the party leaders of the other ­house. The most effective leaders are able to both use the professed preferences of their respective party majorities as negotiating tools in dealing with each other, while si­mul­ta­neously using ­these negotiations as leverage within their own parties, where the critical business of the legislature gets done in New York.

St r u g ­g l es f o r P ow e r , P osi t i o n , a n d Acc e ss

181

The Party Conference Perhaps the most obvious ways in which legislative leaders communicate with party colleagues is in the party conferences. All four conferences meet almost daily when the legislature is in session and frequently when it is not. In their basic outline, “party conferences are closed door sessions held off the floor on a regular basis for legislators only. In t­ hose sessions, members are f­ree to make arguments about policy directions the party should take. The leadership is then generally ­free within t­ hose limits to negotiate with the other ­house and the governor over policy.”19 How much freedom leaders take from conference instructions varies. Some conference meetings are agonizingly specific. During session, for example, the parties frequently recess, ­going into conference, often in the ­middle of debate on a bill. This happens when party leaders sense that t­ here is discontent in the ranks. On rare occasions when the discontent is widespread, a bill w ­ ill be withdrawn from the floor, e­ ither to be redrafted or left to die. Sometimes—­particularly at the beginning of a session—­discussions in conference are wide-­r anging and almost philosophical in tone, although leaders have dif­fer­ent styles. Former Assembly Speaker Sheldon Silver reportedly ran a tight ship, using party conferences to disseminate information and set the party line rather than as a mechanism for building consensus. In contrast, his successor, Carl Heastie, is frequently credited by his colleagues and the Albany press for relying on consensus while leading the Demo­cratic conference or at least higher levels of coordination with rank-­and-­file members.20 Similarly, Senate Majority Leader Andrea Stewart-­ Cousins employs a consensus-­oriented approach in the party conference and in working with her Republican colleagues in the minority despite the supermajority that Demo­ crats enjoy in New York’s upper h ­ ouse. This may be attributed to a more ideologically diverse Senate Demo­cratic conference in recent years, but it might also be the long history in which Stewart-­Cousins’s three GOP pre­de­ces­sors oversaw a closely divided split between Republicans and Demo­crats, which forced all of them to lead more cautiously and collegially both within and across their party conferences. In Jewell and Whicker’s typology of leadership styles, Sheldon Silver was clearly a “command” as opposed to “consensus” or “coordinating” leader. He tended, according to the typology, “to suppress conflict . . . ​minimize participation by rank-­and-­file legislators, and . . . ​use party caucuses to disseminate information and to inform members of decisions already made. . . . ​They are likely to apply more pressure on members to support positions taken by the caucus. Command leaders limit access to key information.”21 Prior to the

18 2 C h a pt e r  6

ascendancy of Speaker Carl Heastie and Majority Leader Andrea Stewart-­ Cousins, ­there have been few “consensual” leaders in modern New York history. During divided government, few legislators would be willing to trade the benefits of unity for the uncertainties of too much internal democracy. We suspect consensus leadership, which “emphasizes debate and discussion, even at times at the expense of action,” is seldom found in states such as New York that mirror the responsible party model.22 This does not mean that the rank and file cannot be consulted, especially if the pro­cess of give-­and-­take is kept within the bound­aries of the party conference. Former Assembly Speaker Stanley Fink loved the give-­and-­take of lengthy conference sessions, often ­running them “almost like gradu­ate seminars,” as one member recounted. He was like “the conductor of a symphony seeking harmony in the ranks,” said another. Yet Fink was still very much the conductor and arguably engaged more of what Jewell and Whicker termed coordinating leadership, in which leaders have a “moderate need to control ­others and they focus on the outputs of public policy.”23 David Paterson’s style of leadership when he was Senate Minority Leader in 2002 is best characterized as coordinating. He worked closely with three or four of the top Demo­cratic leaders to iron out positions on policy issues prior to conference meetings.24 It is worth noting that Paterson was dealing with a Demo­cratic conference with about thirty members compared to the more than one hundred members Silver managed in the Assembly. Leadership involves strong ele­ments of reciprocity. Their continuing power is a function of the trust accorded by the party conference. His ability to inspire such trust, however, depends partly on their ability to effectively press party positions outside of the legislature. As they deal with their counter­parts, party leaders have a strong interest in presenting a united front with their fellow party members who share that interest. One impor­tant function of the party conference is to develop a sense of unity or, if that is unobtainable, the image of not being divided. The norm of party government, combined with the per­sis­tence of divided party control, made it unlikely that parties could substantially increase rank-­and file participation. The examples of legislative leadership in New York suggest the luxury of intraparty democracy likely emerges when one party maintains unified control of the legislature and executive. While that was indeed the case a­ fter the November 2020 elections in New York, the question that remains is ­whether or not the competition for policymaking between the legislative and executive branches in Albany ­will diminish the pro­cesses required for intraparty consensus and coordination within the Assembly and Senate chambers with Demo­cratic majorities.

St r u g ­g l es f o r P ow e r , P osi t i o n , a n d Acc e ss

183

Leadership Goals A second dimension of Jewell and Whicker’s leadership typology focuses on leadership goals, and ­here the differences—­though more difficult to classify—­ are as pronounced in New York as they are elsewhere. Legislative leaders are classified in this schema as to ­whether they are motivated primarily by an orientation ­toward power, policy, or pro­cess.25 Surprisingly few legislative leaders in New York manifest the ambitions typifying power-­oriented leaders. The con­ temporary New York State legislature, while very combative, requires that party leaders compromise to be effective, which may make them too weak as statewide candidates. Power-­oriented leaders, in this typology, might be too willing to defer to outside interests and too pragmatic in their approach to governors and interest groups to serve the needs of their party conferences. Based on Jewell and Whicker’s leadership typology, the evolution of Assembly leadership from Stanley Fink to Sheldon Silver and then to Carl Heastie has changed from policy to pro­cess. Fink led with a clear programmatic agenda. With his base couched in the liberal wing of the party, he not only put liberals in positions of power but also fought Governor Mario Cuomo—­also a Democrat—­who moved to the center during his tenure. Although subsequent Speakers have been drawn from New York City, their ideological leanings have been difficult to discern. Sheldon Silver was unusually pragmatic in his approach to issues u ­ nder Republican governor George Pataki. Rather than directly confronting the conservative governor, Silver countered Pataki’s policy proposals with scaled-­down alternatives. Expanding on the systematic use of public opinion polls institutionalized by Mel Miller, Silver used polls to guide strategy and policy decisions, even using them to convince liberals to go along with many of Pataki’s proposed bud­get cuts. The theme of government “austerity” advanced by Governor Andrew Cuomo largely chastened both ­houses of the legislature following votes on his proposed bud­get plans ­under both divided and unified government.

Courting Party Leaders and Gaining Access Of the roughly twenty thousand bills introduced ­every two years in the Assembly and Senate, few are expected to go beyond the introductory stage. When serious interest in changing public policy emerges, the locus of power shifts to a much wider road, a road that leads invariably through the tollgates of the majority-­party leadership. To pass ­either ­house of the New York State

18 4 C h a pt e r  6

legislature, a bill must be acceptable to the majority-­party leadership, and to become law the bill must have active leadership support. How does one go about marshaling such support? Party leaders are not equally accessible to all members. Clearly, they listen almost only to members of their own party. Even within their party conferences, moreover, some members do a lot better than ­others. Other ­things being equal, se­nior members have an advantage. Through long-­standing acquaintance, they are known commodities in the eyes of party leaders, and—­because of se­niority and perhaps friendship—­are more difficult to avoid. Most of the se­ nior members, moreover, have built up substantial backlogs of knowledge and connections with outside groups that make them impor­tant gatekeepers of information through the committee system.

Committees Most members of the Assembly sit on two to six committees, and senators sit on as many nine. While se­niority, party loyalty, and constituency play a role in committee assignments, party leaders generally attempt to give most members what they want. In contrast to the Congress however, where stability of membership is a key f­ actor in explaining the powers of standing committees, turnover in New York is substantial. With certain key exceptions—­Assembly Ways and Means and Senate Finance—­members, especially ju­nior ones, tend to sit lightly in their committee assignments. Rapid turnover is for the most part a function of individual preferences and leadership’s needs to put together the jigsaw puzzle of committee assignments. As in Congress, committees range from the highly desirable—­Ways and Means, Finance, Health, Education, and for most members Codes and Judiciary—to ­those that vary according to where a member is from, such as Agriculture, Housing, and Transportation, to ones requiring duty rather than privilege, including Ethics and Election Law. Attendance at the meetings of minor committees is low, and turnover between sessions is fairly high. Having a committee such as ­Children and Families on your resume does not hurt, but the real­ity is that the committee seldom h ­ andles an impor­tant bill, and membership on it is not prized. What is highly prized is chairing even an unimportant committee. Rosenthal’s analy­sis of state legislative committees is largely true of New York: “In many re­spects, the chairperson is the committee. This is b­ ecause participation by other members is often sporadic; they may have their own committees to chair or are spread thin among many assignments. Increasingly, practically all returning majority-­party members have a committee . . . ​to call their own; that is where they focus their energies while playing a more nominal role in the af-

St r u g ­g l es f o r P ow e r , P osi t i o n , a n d Acc e ss

185

fairs of other units on which they sit. The more impor­tant the committee, the likelier it is that members ­will be involved.”26 Almost e­ very Demo­cratic senator and more than one-­third of the Demo­crats in the Assembly hold a chairmanship or are assigned to a major committee. Most other majority-­party members specialize in no more than two or three areas. A study of all ninety-­nine state legislative bodies compared legislatures according to the degree that key decisions w ­ ere made by party leaders, in the party conference, in committee, on the floor, and so on. As expected, committees ranked relatively low in importance in New York State, where most members likely reported the central role of party leaders and the party conference. In Wayne Francis and James Riddlesperger’s ranking, New York’s Assembly committees ­were thirty-­ninth in their “centrality” scores; Senate committees ranked still lower, at forty-­seventh.27 A 2006 study similarly found New York’s committees on the low to ­middle end of committee system autonomy.28 Committees in both ­houses exercise some control over the flow of bills through the party conferences to the floor. Committees in New York, unlike ­those in other state legislatures, have no significant subcommittees, hold relatively few public hearings, and do not “mark up” or amend bills. Even if the committees are peripheral to the pro­cess of lawmaking, committee members—­chairs in particular—­are not. Committee chairs have considerably more access to party leaders on bills within their jurisdictions than do other members, and majority-­party committee members—­working through their chairs—­are next in line. As we ­shall see in chapter 7, ­there are formal mechanisms by which members can request serious committee consideration of their bills, but the real­ity is that committee membership is the best guarantee that a member’s bill w ­ ill be heard. B ­ ecause this is true, lobbyists tend to focus their efforts on committee members (chairs especially) who deal with the lobbyists’ issue areas. Regular interactions with t­hese lobbyists tends to build familiarity with the issues and plug individual members into networks of lobbyists, bureaucrats, local officials, academics, and constituents concerned with ­those issues. Major committees usually meet on a regular schedule each week during the session, with the minutes before and ­after the meetings often serving as social occasions, uniting old friends, who include members, lobbyists, and the professional staff assistants appointed by the chair. Typically, during the course of members’ legislative ­careers, they ­will gradually narrow their focus to a more ­limited set of issues. Newer members in the Assembly serve on an average of five committees each in their early years in the legislature, compared with fewer than four committees a­ fter they serve more than twenty years. Se­nior members are considerably more likely to stay with the same set of committees from one session to the next, particularly

18 6 C h a pt e r  6

a­ fter they have secured an impor­tant chairmanship or a seat on Ways and Means. While the Speaker controls the central research staff, long-­serving chairs tend to know more about the details of their issue domains than can any party leader. While committee staff members work with central staff, they are appointed by and responsible to the committee chairs. Committee chairs seldom find it difficult to control their committees. In the final analy­sis, party discipline can be invoked against a dissident bloc. The more difficult prob­lem faced by committee chairs in New York is maintaining control over their own turf. The first dimension for evaluating the strength of standing committees, Rosenthal suggests, “involves the extent to which the jurisdiction of committees is respected and committees are referred bills. If many bills or the most impor­tant ones bypass committees, then the strength of the committee system is in doubt.”29 In many states, “referral can be a critical decision that, literally, determines the ­f uture of a bill.”30 The prob­lem for committee chairs in New York is not at the referral stage. As in Congress and most state legislatures, most bills are referred to the appropriate standing committees.31 The prob­lem faced by committee chairs in New York occurs when leadership asks central staff to redraft bills or fold them into the budget—an ongoing phenomenon. The latter prob­lem increasingly resurfaces as a source of frustration for the rank and file in both h ­ ouses. For example, a member introduces a bill that is referred to the Committee on Energy. Supported by the chair and a majority of committee members, the bill is reported out of committee, but before it reaches the floor, the Speaker or majority leader uses the bill as a bargaining chip to negotiate with their legislative counterpart and the governor. As a bud­get item, the bill no longer includes your name as sponsor, and it may not emerge in the form you ­imagined it would as a statute. Yet ­because you got what you asked for, it is difficult to complain. The arrangement and structuring of the choices available to members when a bill goes through committee and comes to the floor is u ­ nder the firm control of the committee chair, in what po­liti­cal scientists call “agenda control.” Ninety-­six of e­ very one hundred bills introduced in Albany w ­ ill die in one committee or another. If ­there are competing approaches to the same prob­lem, it is the committee that decides which one to report. If the majority-­party leaders have strong preferences, however, agenda control—­more than in almost any state legislature—is firmly in the hands of the Speaker in the Assembly and the majority leader in the Senate. Although t­ here are procedural means by which the leadership can overrule a committee—by folding the issue into the bud­get, for example—­most of the time the pro­cess is straightforward and direct: the Speaker or majority leader simply tells the committee chair what to do. And should the message not get through, ­there are ways in which com-

St r u g ­g l es f o r P ow e r , P osi t i o n , a n d Acc e ss

187

mittee chairs can be reminded. In 2008, for example, a committee chair in the Assembly worked with some Republican members to report a bill that was not the version preferred by Speaker Sheldon Silver. In response, the Speaker appointed Majority Leader Ron Canestrari and two other Demo­cratic Party leaders to the committee, which at its next meeting voted to reconsider the issue and substitute the bill favored by Silver. The next day the committee’s three new members resigned. T ­ here is no evidence to suggest that Assembly Speaker Carl Heastie has used his committee appointment power to control the flow of legislation this way. Still, the power to do so in the Assembly and Senate remains a part of legislative life in Albany during ­every session.

To Get Along, Go Along The slogan former Speaker Sam Rayburn passed on to ­every new member of the US House of Representatives u ­ nder his leadership was: “to get along, go along.” A key test of a member’s status as a “player” lies in the member’s willingness to “go along” with the party majority, even when that vote might go against the member’s conscience, constituency, or better judgment. Still, members have wiggle room. Since the Assembly Demo­crats have enjoyed a large majority, the Speaker is usually prepared to allow some members to vote with the minority if they need to for any reason. A member who might face serious reelection prob­lems—­such as a rural Demo­crat considering a gun control bill—­will sometimes be encouraged to vote against the party position. Almost all legislators, however, have at some time been asked to cast a vote that they would just as soon not. The leadership w ­ ill usually try to bring the issue to vote in a form that makes most party members comfortable, but the time ­will come when you ­will be asked to “fall on your sword.” A willingness to “go along” with the leadership is an impor­tant mea­sure of how well a member ­will “get along” when it comes to committee assignments, help with campaign funds, reapportionment, staff allowances, and so on. In the long run it is also a key standard by which you are judged by your colleagues. A willingness to go along should not be confused with a member’s voting rec­ord. ­Under normal conditions, a party leader “enforces discipline on as few of his members as pos­si­ble, for t­here is no point in imposing further po­liti­cal costs once he is over the top. But he often does not know how many he can ‘let off the hook’ u ­ ntil the minority members vote.”32 The way this usually occurs is by holding a few votes in reserve ­until the final tally becomes clear. ­Whether switches are prearranged in conference, the pro­cess is not always this smooth. For example, on an Assembly vote, one Demo­crat refused to shift his vote ­unless and u ­ ntil the majority leader went first. “If the leadership ­won’t take a

18 8 C h a pt e r  6

fall,” he explained, “how can they ask me to?” While his logic might not have been appreciated at the time, it is—as a general rule of thumb—­the more se­ nior party leaders who are asked to switch first.

Member Access to Party Leaders The weeks leading up to the end of session—­typically in June—­demonstrate a perennial challenge for rank-­and-­file legislators and their access to their party leadership. ­There is only so much money to go around during t­ hose final weeks; it seems every­one wants to get to the Speaker, the majority leader, or the governor. The two most common channels for communicating with the leadership are through formal appointment and in conference discussions. The ­later in the session it gets, the more difficult this becomes. Members are “ranked”—­not in any formal sense, but ­because the Speaker or majority leader prioritizes the requests of ­those who have earned credibility. Such f­ actors as se­niority, committee chairmanships, and rec­ords of reliability help. In both majority-­party conferences, ­there is a par­tic­u­lar advantage to being from a marginal district. A Demo­ cratic Assembly member from a normally Republican area, for example, is far more likely to get a sympathetic hearing than one from a safe Demo­cratic seat, if only b­ ecause the party leaders may need ­these marginal district members to maintain their majorities. To promote positive action from the leadership, an idea must be well fleshed out in advance, if not in the form of a bill then in terms of a concrete proposal for action. As one former top aide put it, “An idea has to make sense. It has to be something that is not g­ oing to cause a prob­lem for the other members of the majority. ­There is an evaluation of individual ideas and a meshing of the dif­fer­ ent ­things that the members of the conference would like to do, a placing of priorities on them.”33 If a proposal is likely to help the party to raise funds or help a marginal member win reelection, it w ­ ill get a hearing; if it is good public policy, so much the better. If leadership can sell the proposal to the governor and the other h ­ ouse, its chances are better. Thus, it helps to have support in the other ­house, to have the same or a similar proposal pending in committee or on the calendar, or to have the proposal passed in dif­fer­ent form. It does not hurt for the Speaker, majority leader, or governor to hear from more than one member on the same issue, and the backing of an interest group with strong ties to the party can be a big plus. The passage of the Reproductive Health Act and the DREAM Act in 2019, along with criminal justice reforms in 2019 and 2020, w ­ ere arguably a by-­product of this confluence of forces combined with a switch in party control of the upper ­house. Similarly, legalization of recreational marijuana came

St r u g ­g l es f o r P ow e r , P osi t i o n , a n d Acc e ss

189

to the fore in 2021, when multiple stakeholders came together to support of the idea. A lot of the real work in Albany, the detailed po­liti­cal crafting of policy proposals, takes place in the party conferences of the majority party. This is where the Speaker and majority leader “listen to the members . . . ​discern their positions, mesh ­those positions, conceptualize policies which ­were responsive to ­those distilled and reconciled positions, enunciate ­those policies back to the members, get their reactions, and fi­nally modify t­ hose policies, as appropriate, based on the reactions of the members.”34 Acting strategically in conference, the wiser members comment only when they have impor­tant insights to impart. In the conference committee, chairs—­those who are respected for d­ oing their homework—­get the most attention. At the same time overspecialization—­ seeing e­very policy issue that arises in conference as one involving health, schools, substance abuse, or whatever—­can turn you from being an expert to a “one-­trick pony,” someone whose response to ­every issue is predictably tied to one answer. In the Assembly Demo­cratic Conference, regionalism plays a strong role, with New York City Demo­crats tending to defer to suburban and upstate colleagues on many issues, and vice versa. Most party conferences go smoothly. As much as the party may be split, most of the time the bigger enemies are “out ­there.” Emotions, however, can erupt, and individual members sometimes feel so strongly about par­tic­u­lar issues that they take strong stands. A former chair of the Assembly Higher Education Committee, for example, once threatened to vote against the bud­get if the Speaker agreed to a proposal eliminating a college in the City University of New York (CUNY) system. His strong stand worked in this case, and the Speaker went back to the governor and majority leader and reworked the CUNY bud­get; but, as the chair conceded, “you c­ an’t use that kind of tactic too often.”

Governors Few chief executives in the other forty-­nine states are as firmly in control of their executive agencies as are the governors of New York. In many states, power­ful committee chairs regularly are able to protect favored agencies from cuts and unwanted changes proposed by the governor. Clientele groups that benefit from a par­tic­u­lar agency often work through legislative committee leaders to dominate program implementation. This is not to say that a governor whose program calls for cuts or changes in the mission of a department or agency is unlikely to encounter re­sis­tance. Despite the relative weakness

19 0 C h a pt e r  6

of committees in New York, the ability of state bureaucrats and their interest group allies to resist a governor—to end-­run the governor’s directives by appealing to the legislature, the press, or the courts—is not unsubstantial. The powers of a governor, however, are not ­simple powers of command. In the legislature, similarly, the majority-­party leaders strongly control the flow of the legislative pro­cess and control the broad content of legislation but seldom have expert knowledge about or interest in controlling the details of e­ very bill. High-­seniority, long-­tenured standing committee chairs and experienced lobbyists often develop personal relationships with their administrative counter­parts that frustrate hierarchical controls and require governors and their staff to develop communication channels and connections of their own. Po­liti­cal power involves not only formal authority, but also skill. Some of the ­factors that bolster po­liti­cal effectiveness are not entirely u ­ nder a governor’s control. T ­ hose who face a legislature at least partly in the hands of the opposite party, as New York governors have ­until very recently, operate ­under significant constraints. Each governor, nonetheless, brings to the job a set of personal and po­liti­cal attributes that can make their formal powers effective or not. The essential prob­lem of all chief executives, as Richard Neustadt argues in his classic study of the presidency, is “how to be on top in fact, as well as in name.”35 Neustadt’s exploration of presidential power is so well articulated that it diverts the eye from the conceptual sparseness of the analytic framework. Indeed, most studies of leadership are stronger in anecdote than intellectual rigor—­more art than science. But what Neustadt teaches a generation of po­liti­cal scientists is that the formal powers of public officials cannot be explained simply in terms of formal roles: “outcomes are not guaranteed by advantage.”36 Some governors come to office with what the press and some sectors of the public perceive as significant electoral mandates. As Thad Beyle notes, “The premise is that the larger the margin of victory the stronger the governor w ­ ill be in the view of other actors in the system. Governors with a wide margin can use that margin po­liti­cally by declaring that the ­people overwhelmingly wanted him or her in office so that a par­tic­u­lar goal could be achieved.”37 Statewide elections in New York ­were competitive ­until 2006, so few of the Empire State’s governors came to office with the kinds of mandates that command immediate attention. The state’s last Republican governor, George Pataki, won his first election in 1994 by a relatively slim margin of just 4 ­percent. Moreover, his victory occurred in the context of strong national showing by the GOP, deeply shaking many Assembly Demo­crats in upstate and suburban districts who saw their victory margins narrow. Instead of trying to work with them, Pataki—­unlike previous governors—­went on the attack, with a series of tele­vi­sion commercials that targeted ­these members.

St r u g ­g l es f o r P ow e r , P osi t i o n , a n d Acc e ss

191

The short-­run results ­were impressive, with the governor passing a death penalty bill, lowering high-­end tax rates, and substantially cutting the bud­get. Yet, by the next session, Assembly Demo­crats regrouped, and many of ­these changes w ­ ere undone. Even a­ fter winning by a landslide in 1998, Pataki never regained a position of strength vis-­à-­vis the legislature. In 2006, Demo­crat Eliot Spitzer was elected governor with nearly two-­thirds of the vote. Not unlike Pataki, Governor Spitzer came to Albany determined— in a phrase that would come back to haunt him—­“to f—­ing steamroller” the legislature. Mounting a personal attack on Majority Leader Joseph Bruno by blocking the legislature’s power to appoint one of its members as a replacement to Comptroller Hevesi, and then campaigning against Demo­crats who opposed the governor in that fight, Spitzer was soon without a friend in Albany. What­ever “mandate” he had dissipated in a m ­ atter of months, as evidenced by a deafening silence when Spitzer came ­under scrutiny in the wake of a sex scandal that ended his po­liti­cal ­career. Arguably, Governor Andrew Cuomo fared better with re­spect to the exercise of power during most of his tenure. Still, his capacity for the type of triangulation he emulated, from his mentor President Bill Clinton, did not always help the governor advance his legislative agenda through a Republican-­controlled Senate or even an increasingly left-­leaning one since 2019. What­ever grades observers might give Governors Pataki, Spitzer, and Cuomo, the one comment that would prob­ably appear on all of their report cards is “does not play well with o ­ thers.” In part b­ ecause the New York legislature attracts bad press, perhaps deservedly, Governors Pataki, Spitzer and Cuomo all underestimated the legislature. ­Because they did, what­ever electoral “mandates” they might have had soon dissipated.

Staff Sophisticated studies of po­liti­cal leadership do not offer ­simple formulas for success. It would have been impossible for a George Pataki to replicate the rhetorical skills of Mario Cuomo, and Pataki was not foolish enough to try. Few governors have been able to exude the personal charm and charisma of a Nelson Rocke­fel­ler, and none have had his kind of money. All of the successful ones, however, have surrounded themselves with talented aides, marshaled their resources effectively, responded effectively to crises, and been able to articulate a policy agenda to the legislature and the public. New York’s governors have an unusual degree of formal freedom to choose their governing teams. The law provides them with large personal staffs, generously paid to attract top ­people (many earn in excess of $250,000 a year, the governor’s current annual

19 2 C h a pt e r  6

salary), and the power to appoint most agency and department heads. A tradition of legislative deference allows wide latitude in deciding whom to appoint. In real­ity, ­there are po­liti­cal constraints that limit the power of appointment. While patronage is not a dominant force as in the days of machine politics, ­there are invariably groups and individuals with more or less legitimate claims to recognition. T ­ hese range from such abstract considerations as gender and ethnicity to very concrete demands to include par­tic­u­lar individuals or group members in impor­tant policy positions. L ­ abor ­unions for example, expect to be represented in a Demo­cratic administration, as the Business Council does in a Republican administration, not necessarily in terms of specific individuals but as a sort of general recognition of their importance in a winning electoral co­ali­tion. Occasionally, the pivotal role of minor parties in New York politics adds another facet to the range of attributes governors must consider in filling the thousands of jobs exempt from civil ser­vice rules. For example, it was a given that George Pataki would consult with Conservative Party leaders and follow their general and specific recommendations in making a number of key appointments. The same rule of thumb likely applied to Andrew Cuomo; however, his alliance with the Working Families Party became strained before he resigned from office in 2021. Moreover, the ­Women’s Equality Party—­a party he created to offset the influence of the WFP—no longer enjoys ballot access in New York. ­These general constraints seldom limit effective control. T ­ here are offices with nice titles and salaries and ­little responsibility to which untrustworthy or incompetent (but po­liti­cally impor­tant) individuals can be appointed. In ­every administration, moreover, ­there is a sorting pro­cess in which certain individuals begin to emerge as key players. In the Rocke­fel­ler and Carey administrations, the governors’ personal secretaries—­William Ronan and Robert Morgado, respectively—­could be counted on to speak for the governors. With Mario Cuomo and George Pataki, the inner circle expanded to three or four key players, with one of Cuomo’s key ­people—­his son Andrew—­not even occupying an official office. In turn, the younger Cuomo kept a close circle of advisers and confidants, including Robert Mujica, the governor’s bud­get director, and Joseph Percoco, who ­violated that trust and was convicted in 2018 of federal corruption charges for soliciting and accepting bribes as part of a pay-­to-­play scandal in Buffalo.38 Lower-­ranking aides and department heads—­called commissioners in most departments—­drift in and out of the governor’s personal orbit. The governor’s cabinet, which is a collective body representing heads of the major departments, seldom meets and has never been an impor­tant body. Some department heads are considerably more impor­tant than ­others. Governor Hugh Carey brought his personal physician, Dr. Kevin Cahill, to the second floor as an un-

St r u g ­g l es f o r P ow e r , P osi t i o n , a n d Acc e ss

193

paid special assistant for health care. Carey’s first health commissioner was ­little more than an administrator, but when Cahill picked Dr. David Axelrod for the position and became less active himself, ­there was a vis­i­ble shift in power. Axelrod, who continued as commissioner ­under Governor Cuomo, was among both governors’ most influential advisers and was unusually f­ ree to run his own department and even to extend its influence into areas previously ­under strong local control. It is rare for commissioners to achieve this kind of in­de­pen­dence, even within their own department, as a too power­ful commissioner threatens the governor’s chain of command. Equally threatening are such attributes as stupidity, ethical insensitivity, and overt disloyalty. Both Pataki and Carey had trou­bles with their lieutenant governors r­ unning against their former patrons. Idiosyncratic as t­hese cases may be, they illustrate a general dilemma all governors face in trying to put together governing teams. Appointments have symbolic loading. As a rule, it is po­liti­ cally impor­tant to balance one’s governing team in terms of gender, region, and ethnicity. When it comes to governing, however, qualities such as loyalty come to the fore, and an administrator should at least be reading from the same page as the governor. An administration that is “balanced” is generally difficult to control, but this tends to be less true in New York than in most other states. What makes New York dif­fer­ent in this sense is that the intervening layer on the second floor—­the governor’s personal staff—is far larger than that of any other governor. Although technically it is the executive office that runs the bureaucracy, strong governors control the executive office. The Division of the Bud­get, ­housed in the executive office, is imbued with a tradition of control that makes it virtually impossible for state officials to take significant actions without having them cleared through the second floor. ­After several years of government cost cutting by Andrew Cuomo, the 2021 bud­get counted 136 full-­time employees in the governor’s chamber, plus another 300 u ­ nder his direct control in the Division of the Bud­get. And ­these figures do not include miscellaneous offices and special committees that report directly to the second floor or personal assistants to the governor who are formally on the payrolls of other agencies.

Controllers and Controllees Although it is a prob­lem most other governors would gladly shoulder, the size of New York’s executive office pre­sents dif­fer­ent challenges. More than seventy years ago, when a special commission proposed a major expansion of the president’s personal staff, some of the wiser students of public administration warned against too strong a faith in what became known as “salvation by staff.” The prob­lem is twofold. First, the larger the executive staff, the more time the

19 4 C h a pt e r  6

governor must spend hiring, firing, monitoring, and motivating his staff. This leaves less time for working with legislators, journalists, commissioners, and the public. Second, a large staff is more difficult to motivate and control and can become “institutionalized” in the worst sense of that term. Few agencies of executive power are more potent than t­ hose with real bud­getary authority. Writing about the bud­get, Allen Shick describes the power as follows: As it became the institutionalized presidency, the Bureau became separated from the President. With a 500—­man complement, the Bureau was just too large and too remote to be the President’s own. . . . ​It could not be quick or responsive enough for an activist President who wants to keep a tight hold over program initiatives. . . . ​Over a period of de­cades, the Bureau had become a rigidified institution. . . . ​The routines of bud­geting and legislative clearance had been solidified by years of tradition-­building and practice, not easily changeable. It was a labyrinthine task to make even minor modifications in the procedures for bud­get preparation and review, and in fact, few changes ­were made.39 New York’s bud­get office is neither large nor unwieldy, but Schick’s point applies. By appointing a strong bud­get director, a governor can set the administration’s general tone. From the bud­get office down to the lowest levels of the bureaucracy, a tremendous amount of inertia is built into the system. Martha Weinberg’s case study of Governor Sargent in Mas­sa­chu­setts aptly notes, “gubernatorial intervention is ­limited and not even-­handed for all agencies. In agencies where t­ here is no crisis, ­there is often no management on the part of the governor.”40 As much as New York’s governors are empowered by large staff, control is diminished by filtering it through a second layer. Governors are not precluded from dealing directly with their commissioners, but they risk sending conflicting signals ­unless they bring their own executive office on board at the same time. From a comparative basis, no governor has more tools at their command for managing the executive branch and no governor has a more confusing and complicated a system within which to work than in New York. For a governor such as Andrew Cuomo, who insisted on personally reviewing almost ­every decision made on the second floor, the very size and complexity of his staff often inhibited executive action. Countless boards and commissions had lingering vacancies pending the governor’s personal approval of staff recommendations. Almost half of the gubernatorial seats on the university’s community colleges, for example, ­were ­either vacant or filled by holdovers on an interim basis. Both the In­de­pen­dent Redistricting Commission and the

St r u g ­g l es f o r P ow e r , P osi t i o n , a n d Acc e ss

195

Box 6.2  The Tools of Leadership Most academic studies of po­liti­cal leadership emphasize its collegial, reciprocal nature. “Punishment,” as Alan Rosenthal suggests, “is the exception, even when members refuse to go along with their legislative party on an issue.”41 ­Every pre­sent and former party leader we talked with echoed this repeatedly. Phrases such as the following appear throughout our notes of ­these conversations: “I never demoted anybody.” “Why would I want to hurt a member of my own conference?” “Ultimately, the only real power you have is the power of persuasion.” Most governors would prob­ably say the same kinds of ­things. Journalists and members often presented a very dif­fer­ent view, emphasizing the toughness of ­these same leaders and telling stories of ­those who had faced the Speaker’s anger or how the governor called an aide into the woodshed. Both Mario Cuomo and his son Andrew ­were notorious for their angry phone calls, often far into the night, blasting journalists, legislators, mayors, and o ­ thers. “A lot of p­ eople in New York state have received ­those phone calls” as former New York City Mayor Bill de Blasio once put it. “The bullying is nothing new.”42 ­These dif­fer­ent perspectives reflect the elusiveness of the concept of sanctions, which, like nuclear weapons in the military theory of strategic deterrence, are most effective when they are not actually used. When Sheldon Silver beat back a challenge to his position some of the tactics he used certainly felt like sanctions, although no one was actually punished ­until ­after the vote. It is, of course, the ability of ­those in positions to punish that underlies the ability to persuade. When the Speaker’s counsel or a top aide to the governor summons you to their office and asks why you are ­doing something, it is not unnatural to think that you are being asked to stop ­doing it. While formal sanctions are seldom used, this in no way negates their importance in shaping the relationships between party leaders and the rank and file in the legislature or between the second floor and legislators or vari­ous agency heads in the executive branch. Sanctions, rewards, and all the inducements available to party leaders are given by the members to their leaders to advance party and policy goals. Legislators and bureaucrats know that resources are finite and that not all of them can get what they want. What they ask of their leaders is not that they be yea-­sayers but that they be fair in saying yes or no. As much as e­ very bureaucrat and

19 6 C h a pt e r  6

e­ very member of the Senate and Assembly knows and understands this fact, it still feels like a sanction when the answer you get is no. Dif­fer­ent leaders, at the same time, have dif­fer­ent styles. Andrew Cuomo—­more perhaps than any modern governor—­was known for his cutthroat tactics, but he also was a skilled negotiator capable of compromise and able effectively to deal the leaders of both parties: “a master politician of charm and brute force,” as Michael Shnayerson writes.43

Office of Cannabis Management w ­ ere in limbo for months b­ ecause the governor’s office failed to make the necessary appointments or release bud­geted funds.

Credibility In dealing with staff, governors have the ultimate sanction at their command: the ability to fire ­those who refuse to go along. As with most power­ ful weapons, it is best used with care. What­ever George Pataki gained from his announcement that Betsy McCaughy-­Ross would not be on his ticket in 1998, he paid a price in bad press, a perception that he was insensitive to ­women, and a general feeling among insiders that Pataki was not r­ eally in control. All agency heads know that they hold their jobs at the plea­sure of the governor. They do not usually need to be reminded. Still, a governor who gets to the stage at which firing is the only option is prob­ably walking on thin ice. Most of a governor’s other powers are grounded less in command than in re­spect. Even the power to fire ­people is not much of a threat if they believe that they have less to lose from being fired. A governor who is ­doing poorly in public opinion polls, or who has a reputation for indecisiveness or backing down in the face of adversity, is more likely to be challenged than one who is riding high. Skill is respected in Albany and is part of credibility. At the end of two terms, Governor Hugh Carey’s personal prob­lems had made him the butt of many jokes and negative editorials, but his shortcomings w ­ ere generally compensated for by his command of difficult policy issues and willingness to make difficult decisions. The mismatch between Carey’s public image and his standing among insiders led his biographer to label him “a Rolls Royce engine in a Studebaker body.”44 More recent governors seemed to have had exactly the opposite prob­lem. Just a year out of office, George Pataki’s standing was

St r u g ­g l es f o r P ow e r , P osi t i o n , a n d Acc e ss

197

so low among his fellow Republicans that he was not even invited to serve as a delegate to the party’s 2008 national convention. “Pataki’s insouciant leadership and his administrative mismanagement, incompetence, and corruption,” as one disgruntled supporter recounted, “have not only hurt New York but have crippled New York’s Republican party.”45 David Paterson inherited a difficult situation when Eliot Spitzer resigned, leaving Paterson with a recalcitrant legislature and a host of bud­getary shortfalls ­after the recession of 2008, and he never quite rebounded from negative press or public perceptions of weakness based on personal and ethical lapses reported in the media. Despite the fact that Paterson forcefully steered New York through some of the state’s worst fiscal woes while keeping the government ­running ­after the Senate was thrown into chaos in 2009, he could not capitalize on his incumbency and announced that he would not run for governor in 2010. Paterson’s perceived weaknesses opened the door for Attorney General Andrew Cuomo, who won office in 2010, 2014, and 2018. A ­ fter surviving the ­legal downfall of one of his closest confidants in 2019, Cuomo initially appeared to benefit from public perceptions of his h ­ andling of the COVID-19 pandemic in 2020, better positioning him to govern the state and establish a positive po­liti­cal image in and outside of New York. Forced to resign over sexual harassment charges following a report released by the attorney general, Cuomo’s reputation was further tarnished by a $5 million book deal and a clumsy attempt to hide the extent of COVID deaths in the state’s nursing homes.

Public Prestige A governor has two very distinct constituencies. The first consists of Albany insiders, including legislators, journalists, lobbyists, and other politicians, and the second comprises the general public. What plays with one of ­these constituencies may not play at all with the other. At the peak of his power, Mario Cuomo was one of the state’s most publicly popu­lar governors, revered not just in the state but throughout the nation. In the Albany community, however, he had few friends, some grudging admirers, and numerous (­silent) detractors. Reportedly, only two insiders (both on the governor’s staff ) r­ eally liked him. Similarly, Spitzer was well liked by the public but, not unlike Cuomo, was admired by few Albany insiders. Cuomo’s son Andrew arguably fared better in national circles than among Albany insiders, whose re­spect was tempered by dislike. Affection may or may not be related to prestige. One of the most enduring questions raised by Machiavelli in The Prince was ­whether it was more impor­ tant for a leader to be feared or loved. Although Machiavelli favored the side of fear (on the ground that it is the more enduring emotion), the situation is a bit

19 8 C h a pt e r  6

more complicated in a democracy, where the ability of a governor to inspire fear (in the Albany community) may be directly related to the governor’s ability to engender the love of the voters. Generally, legislators hate it when a governor goes “over their heads” and appeals to the public. The ability of a popu­lar governor to influence the legislature through public opinion is enormous, particularly in the age of tele­vi­sion and social media, when an executive’s voice reverberates widely. Andrew Cuomo’s power vis-­à-­vis the legislature stemmed from his presence on local news and social media and the fear many legislators had about his innate ability to control the bureaucracy and his ability to use ­those tools to “pay back” any who opposed his policy positions.

Dealing with the Legislature ­ ittle of consequence changed from the 1950s through the 1990s in the formal L powers of the governor. And it would be difficult to make a case that a Thomas Dewey or Nelson Rocke­fel­ler was smarter or more skillful or had better staff than Hugh Carey or Mario Cuomo. Looking historically at New York politics during the Dewey and Rocke­fel­ler administrations or further back to the administrations of Al Smith, Franklin Roo­se­velt, and Herbert Lehman, it is clear that their powers relative to t­ hose of legislature ­were overwhelming. Even Averill Harriman—­a relatively weak governor in terms of skills and popularity—­ pretty much got what he wanted from the legislature. The rise of the legislature as a coequal part of the pro­cess revolutionized the nature of New York politics. Po­liti­cal scientist, lobbyist, and gubernatorial aide Norman M. Adler described Rocke­fel­ler as “the Harlem Globetrotters playing against the Saugerties L ­ ittle League. They ­were ­g iants with enormous resources. . . . ​That’s simply not true anymore.”46 The professionalization of legislatures combined with divided government continue to be hallmarks of state governments in the twentieth and twenty-­first centuries, giving legislatures an upper hand.47 Since 2004, however, the legislature’s power has been ­limited to blocking the governor’s bud­get. In the wake of a key Court of Appeals decision, legally “the governor-­as-­legislator has extensive and unreviewable discretion to make policy decisions when drafting the annual bud­get and when exercising any vetoes. The Legislature, in stark contrast, is explic­itly circumscribed in reacting to the policy embodied in the Executive Bud­get. Thus, the power of the purse, traditionally a legislative power, is no longer the plenary, or even the primary, domain of the legislature although enactment of the bud­get remains with the legislature.”48 Even the legislature’s use of delay as a tool to pressure governors into modest concessions waned during the early part of the new millennium.

St r u g ­g l es f o r P ow e r , P osi t i o n , a n d Acc e ss

199

By passing its own contingency bud­get as the temporary fallback u ­ ntil agreement was reached, the legislature was able to force the governor to come to the ­table. This ended when Governor Paterson found a way of making his contingency plan, rather than last year’s enacted bud­get, the fallback. Not only has this made late bud­gets a ­thing of the past, but more often than not the legislature has been forced to pass the executive bud­get with only a few modifications from its initial pre­sen­ta­tion each January.

Symbolic Politics It would be misleading and wrong to portray the contest between legislatures and executives as one in which the growing power of one comes simply at the expense of the other. In New York, as nationally and in most states, both executive and legislative powers have grown as central governments and governments in general have become more impor­tant in the lives of the p­ eople. Many issues once resolved privately or at the local level have been politicized, particularly in the years since Franklin Roo­se­velt became president in 1933. In many areas, a general expansion of government power results in increased powers for both the legislature and the governor. A good deal of the seeming conflict between governors and legislators is symbolic rather than substantive. Particularly in a state such as New York, where both executive and legislative powers are centralized, certain kinds of conflicts have taken on an almost ritualistic character. Throughout the Carey and elder Cuomo years, for example, the votes ­were never ­there to enact a death penalty statute. Both governors made it clear that they would veto any capital punishment bill, and ­there always was a sufficient bloc of Assembly members opposed to the death penalty to sustain the veto. Thus, although ­there was usually a majority in both ­houses for capital punishment, ­there was no way its proponents could ever marshal the two-­thirds majority needed to override a veto. E ­ very year, however, the Senate—­sometimes joined by an Assembly majority—­would pass some form of death penalty bill and send it to the governor for a ritualistic veto. Both sides would issue numerous press releases, with the Republicans’ seeking to embarrass a Demo­cratic governor and Assembly majority on what they saw as a hot-­button issue with voters. To underscore the point, the Republicans would usually package their proposal around the most heinous crimes imaginable—­what one assemblyman called “the lurid crime of the month bill”—­providing capital punishment for such crimes as planting a bomb on an airplane or for the torture-­murder of a se­nior citizen. Governors frequently propose programs they know ­will not pass. In 2020, Andrew Cuomo and the legislature considered two bud­gets, one rather rosy

20 0 C h a pt e r  6

in assuming a federal pandemic bailout and a gloom-­and-­doom version assuming no such help. When governors propose bills they have no intention of pushing, they are not necessarily playing games. In academic terms, governors attempt to set the policy agenda using their visibility as a means of initiating a dialogue about new priorities. Nelson Polsby describes this as “the politics of inventing, winnowing, and finding and gaining adherents for policy alternatives before they are made part of a program, and likewise the politics of moving alternatives from the unlikely to pos­si­ble or probable candidates for inclusion on an agenda for enactment.”49 Certainly t­ here are times when a governor’s motives are more suspect, and the intent is less to initiate policy change than to reap partisan advantage from emotional appeals to the voters. But what­ever the motive, no player in New York politics is better situated than the governor to undertake agenda setting. The governor is aided in t­hese efforts by being the ceremonial leader of the state. The governor gains and maintains visibility by opening new bridges and highways, appearing in advertisements touting the state’s tourist attractions, welcoming presidents and foreign dignitaries to the state, and so on. The ceremonial governor also is able to use this nonpartisan role as a means of subtly pushing certain issues, including marching (or choosing not to) in a gay rights parade, giving a speech (or not giving one) at the annual dinner of the Civil Liberties Union, or visiting a newly opened wildlife refuge. Moreover, no m ­ atter how governors lead, they remain the preeminent members of their party.

Party Leadership How serious vari­ous governors have been in attempts to change the policy agenda is not always clear. T ­ here are times when attractive policy proposals are put forward for strategic reasons or to win applause from the public rather than actually to create an agenda for change. Almost e­ very recent governor has referenced education in the state of the state address, only to send the legislature a bud­get that would result in cuts in state aid. The governor knows that the legislature w ­ ill restore the cuts but hopes to obtain something in return. What­ever the purpose, the usual focus of symbolic politics is the wider public. Republicans pushed the death penalty in the 1970s and 1980s to make Carey, Mario Cuomo, and Demo­crats appear out of step with public opinion. Similarly, Andrew Cuomo’s support for the DREAM Act, which extended financial aid to undocumented college students, in each state of the state address since 2011 had l­ ittle chance of actually becoming law u ­ nder a divided legislature. The purpose of symbolic actions underscores the philosophical differences between the parties and draws greater attention to the issue. What some critics charac-

St r u g ­g l es f o r P ow e r , P osi t i o n , a n d Acc e ss

201

terized as misleading appeals to certain ethnic groups and their supporters in 2011 became—­with a change of party power in the Senate—­state law in 2020. Although unified government has been uncommon in New York State, Republican governors Dewey and Rocke­fel­ler ­were clearly in control. For two de­ cades, they w ­ ere able to control both the executive branch and the Republican contingents in both ­houses of the legislature. Through adroit uses of patronage and centralized campaign fund­rais­ing, they ­were able to overwhelm even the stronger county organ­izations. The Demo­crats, at the same time, w ­ ere seldom able to provide a cohesive opposition. While members understand the value of party unity within the legislature, t­ here are few c­ areer incentives for party unity across institutional bound­aries. Governor Pataki and Senate Majority Leader Joseph Bruno frequently agreed on the issues, and Bruno would prob­ably not have become majority leader without Pataki’s help. But Republican senators have both the ability and the motive to maintain a certain level of autonomy. Mario Cuomo almost took pride in not becoming involved in legislative campaigns, and some observers ­were actually surprised in 2008 when Governor Paterson actively worked to elect a Demo­cratic majority in the State Senate.50 Andrew Cuomo largely followed in his f­ather’s footsteps, sitting out all but the most recent party contests in the Senate. Cuomo surely derived an institutional advantage from divided government in Albany by triangulating between himself and the two h ­ ouses. It was only when his po­liti­cal advantage began to wane that he focused on “flipping” Senate seats from Republican to Demo­cratic. ­Earlier, we described six distinct party systems in New York: the statewide Demo­cratic and Republican parties and their Demo­cratic and Republican counter­parts in each ­house of the legislature. Governors no longer control the ­career fortunes of legislators as they often did in the 1940s and 1950s, however the power of governors to set party agendas or define issues, and control the bud­get to create new law, is more extraordinary than ever. ­Because Governors Carey and Cuomo opposed the death penalty, most voters assumed that Assembly and Senate Demo­crats ­were against capital punishment too. Although it is true that the crucial one-­third of the votes to uphold a veto came almost entirely from Demo­cratic ranks, the issue lost much of its partisan loading when Pataki was elected and the death penalty sailed through both h ­ ouses.

The Power of Provision Some sources of power—­ particularly t­hose based on reputation and credibility—­can be incubated and multiplied, while ­others are scarce, and once used they are gone. A governor can dangle a pos­si­ble appointment to the Court of Appeals before four attorneys and perhaps hold some of them in his thrall,

20 2 C h a pt e r  6

but once the appointment is made, the governor has created “three enemies and one ingrate.” When resources are declining, as they w ­ ere in Pataki’s last years as governor, his failure to provide continuing or growing levels of support for vari­ous constituency groups produced a perceptible erosion of power. When resources are relatively abundant, power used effectively builds power. That is, the more one acquires a reputation for effectiveness and for delivering as promised, the more p­ eople are likely to believe that one w ­ ill continue to do so in the f­ uture. Judiciously used, patronage is a potent resource; so is money. In a tradition stemming from the days of boss rule, New York gives its elected officials an abundant array of goodies to distribute. Although civil ser­ vice reform took most of the operating bureaucracy outside party control, the number and variety of patronage positions remains substantial. ­There are dozens of obscure boards and commissions, some of which never meet but pay decent salaries and provide pension credits for the po­liti­cally connected. The government is a major customer of every­thing from prison food and pencils to iron bars and computers. Construction jobs and supply contracts are awarded through competitive bidding, but t­ here are ways of writing specifications or reviewing capabilities that can clearly tilt a job to a po­liti­cally favored com­pany. Additionally, state bud­gets traditionally provide both the governor and the legislature with discretionary accounts. Individual legislators are often able to distribute millions of dollars in unrestricted grants to local groups. U ­ ntil 2015, legislators w ­ ere able to distribute “member items,” pockets of money cleared through legislative party leaders for special local purposes that ingratiate members with their districts. ­Those very member items also w ­ ere subject to attack from partisan politicians. Upstate Republican assemblyman John Faso described how funds w ­ ere used for po­liti­cal purposes: “Say with a se­nior citizens’ center in New York City. T ­ hose centers become almost local po­liti­cal clubs for the member who got the money.” It is worth noting that Assemblyman Faso himself boasted about a $22,000 grant he had been instrumental in securing for a se­nior citizen’s center in Ravena.51 For all the attention given to ­these relatively small pockets of money once available to legislators, it is surprising how ­little attention is focused on the large discretionary accounts available to the governor. T ­ hese come in five primary forms. First, the bud­get almost invariably puts wiggle room into the funding for most agencies. T ­ hese discretionary accounts are often used for unexpected changes in mission—­for example, when an unusually hard winter forces the highway department to spend more than was planned on snow removal. In many cases, such as heavy snows, t­ hese expenditures are driven by events, but they are nevertheless entirely discretionary accounts that the gov-

St r u g ­g l es f o r P ow e r , P osi t i o n , a n d Acc e ss

203

ernor controls. In 2018, Andrew Cuomo allocated a portion of the executive’s discretionary funds to support the redevelopment of the dilapidated waterfront along the Hudson River in New York City. Billionaire Barry Diller thus was incentivized to continue building “­Little Island,” a privately financed park and per­for­mance space on the western end of the city’s popu­lar meatpacking district.52 A second large pocket of unallocated money available to the governor appears in certain parts of the capitol bud­get. Andrew Cuomo’s ability to memorialize his ­father, Mario, by restoring the Tappan Zee Bridge and renaming it for the late governor suggests that occupants of the executive can use the capitol bud­get in diverse ways. The federal government’s pandemic relief funds similarly offered the governor considerable discretion as to how the moneys would be allocated. Third, the governor has discretionary power over personnel and can move existing jobs from one part of the state to another. Just as Demo­crats Hugh Carey and Mario Cuomo moved jobs to Harlem and the Bronx in largely Black and Hispanic neighborhoods, so did George Pataki move them out of Albany and New York City and into the lower Hudson Valley. In both cases, supporters of the moves cited motives of efficiency and community development. Critics pointed to the tendency for the Bronx and Harlem to be heavi­ly Demo­ cratic, and the Hudson Valley Republican. Fourth, governors and legislative leaders frequently set aside special slush funds of their own, particularly in election years. Governor Pataki, Senate Majority Leader Bruno, and Assembly Speaker Silver divided nearly $1.5 billion (roughly 2 ­percent of the total bud­get) for unspecified purposes. For the legislature to continue the much criticized member items, Governor Pataki reached an agreement to retain them in exchange for comparable discretionary executive funds. In l­ater years, when member items ­were officially abolished, both the legislative and executive accounts w ­ ere folded into one account subject to annual negotiations. Fi­nally, governors have access to discretionary funding through development corporations designed in part to circumvent legislative scrutiny. Created by Governor Andrew Cuomo in 2011, Empire State Development (ESD) replaced the Economic Development Corporation (EDC), whose mission was refocused to implement proj­ects that did not fit existing categories. Both ESD and its pre­de­ ces­sor promoted the state economy, encouraged business investment, and supported a variety of job-­creation programs with grants, loans, tax credits, and other inducements. ESD changed the focus in part by creating a network of regional development councils for a more decentralized and accountable allocation of funding around the state. Although the governor maintained almost

20 4 C h a pt e r  6

exclusive authority over ESD’s funding, the emphasis on cooperation with local agencies was generally popu­lar. ESD was far less successful in increasing accountability. Not unlike its pre­de­ces­sor, ESD has been remiss in documentation and loose in monitoring its proj­ects. ­Under Cuomo’s highly touted “Buffalo Billion” proj­ect, a major scandal erupted with the Empire State’s funding of a SUNY Polytechnic. Both its director, Alain Kayloyeros, and longtime Cuomo aide Joseph Percoco ­were convicted of rigging the bids on a multimillion-­dollar proj­ect of dubious value. Although the SUNY Polytechnic case is by no means typical, how many jobs ESD actually created and at what cost remains unclear. What is clear is that in­de­pen­dent corporations such as ESD are not subject to normal legislative or bud­getary controls.

The Judiciary Scholars have studied the swings of power between the legislative and executive branches, paying considerably less attention to the role of the judiciary. Alexander Hamilton described the courts as “the least dangerous branch,” and scholars have been disinclined to study the judiciary from the perspective of power politics. The image of justice as a blindfolded ­woman is designed to suggest blindness to bias and a sense of being above the fray of the politics. In real­ity, “although some judges deny it, courts occupy a significant position in the policy-­making pro­cess by ratifying choices made by legislatures and governors, by interpreting their policies (and thus adding or subtracting to their substance), and by vetoing policies when the courts declare them unconstitutional. Moreover, they routinely exercise discretion as they impose the norms specified by statutes and administrative regulations while ruling on the disputes brought before them. Thus judges are very much the kinds of officials who might be held responsive to the electorate.”53

Selecting Judges Even in larger towns and cities, judges elected to the civil and criminal courts are often ­there less ­because of ­legal talent than po­liti­cal skill. The question of ­whether judges should be elected or appointed has been debated throughout the history of the state. Opponents of the electoral system argue that some of the best qualified attorneys are the kinds of p­ eople least likely to subject themselves to the rough-­and-­tumble of a po­liti­cal campaign, and ­those best able to run are least likely to have judicial temperaments. While “judicial temperament” is difficult to mea­sure, most studies of state courts do not show

St r u g ­g l es f o r P ow e r , P osi t i o n , a n d Acc e ss

205

that judges elected in partisan elections differ much from t­hose selected through gubernatorial appointments or nonpartisan elections. A more telling argument against the election of judges is that it is unseemly. The ethical codes of the bar prohibit campaigns based on issues, and candidates usually avoid indicating how they might rule on specific cases. Interest groups, however, are ­under no such constraints, and clever advertising campaigns can bring opinions in by innuendo. Jacob Fuchsberg’s 1973 campaign for a seat on the New York State Court of Appeals cost more than half a million dollars (big money in ­those days) and used emotional tele­vi­sion commercials that narrowly skirted bar association rules on issue advocacy. The campaign alienated so many ­people that the state constitution was amended, giving the governor the power to appoint judges on the Court of Appeals. The governor selects from a list of candidates proposed by the State Commission on Judicial Nomination with the approval of the Senate. Although the commission has generally won high marks for screening out less competent candidates and ending demagogic campaigns, its work has not been without controversy. Vari­ous attempts to amend the constitution and make other judgeships appointive have failed, although the argument for depoliticization may well be strongest at the lower levels of the system. Perhaps the most outstanding example of deficiencies that inhere in the system of electing judges is found in New York City’s system of surrogate judges. The county surrogate’s job is essentially that of probating w ­ ills, normally a routine task. When someone dies without a ­will, however, it is up to the county surrogate to appoint a ­lawyer to h ­ andle the estate. ­Because the ­lawyer can be paid as much as one-­third of the total inheritance plus fees for their ser­vices, the business can be quite lucrative. ­Under the provisions of the code of judicial conduct, a judicial candidate is forbidden from knowing the names of campaign contributors (though the candidate can certainly see whose ­faces are in the room at a pricey dinner), but ­there is no way to enforce this rule. Surrogate campaigns in New York City are financed almost exclusively by ­lawyers who specialize in probate. ­These l­awyers, in turn, receive almost all of the probate assignments. The nexus between campaign support and judicial decision making is seldom so clear, although ­there is ­little doubt that the major contributors to judicial campaigns are l­ awyers. However, t­ here is a strong argument to be made for local electoral control of the judiciary. As the most demo­cratic system of se­lection, it provides some assurance that the judiciary w ­ ill be reflective of local community norms and changes in social values. Despite its defects, the system has worked quite well, producing a history of fairness, efficiency, and

20 6 C h a pt e r  6

even distinction. If party hacks, mountebanks, and charlatans occasionally slip past the voters, t­ here is no guarantee that appointed judges ­will be any better. The rec­ords of the party’s se­lection of judicial candidates vary enormously. In Manhattan, where the Demo­cratic nominee is virtually sure of election, the reform Demo­cratic clubs have long insisted on prescreening candidates by a panel of supposedly apo­liti­cal l­awyers. Since the reform clubs took control of the county organ­ization in the 1970s, the caliber of judicial candidates has increased, and the quality of the bench has been higher in Manhattan than in the outer boroughs. Politics is still very much a part of the pro­cess. Deals are made, and the voters seldom have a real choice on Election Day, but very few ­really bad judges slip through the screening pro­cess. As one study of the screening panel system concluded, “merit se­lection produces a younger, more representative, better educated, highly qualified and more po­liti­cally diverse judiciary.”54 The state bar association has been lobbying for a modified version of the Manhattan system statewide. “Fundamental reform,” the state association of ­lawyers argues, “requires that we eliminate po­liti­cal considerations from judicial se­lection—­that we keep the club­house out of the courthouse—­and focus solely on merit.”55 Critics of the merit system argue that the system serves simply to change the nominating elite by transferring real power to the bar associations and elite ­lawyers who compose the screening panels. Party leaders may no longer be in control, but neither is the electorate. Much the same ­thing happens in many upstate counties where the party organ­izations frequently cut deals to cross-­ endorse a bipartisan slate of judges. Each party agrees to nominate only its negotiated “share” of potential judgeships (for example, one of the three seats up that year). In areas where one party dominates, the effect of such deals is to take control away from the electorate and place it in the hands of party leaders. While it may be true that the electorate serves as an ultimate check on the worst of t­ hese insider deals, the fact is that judges are seldom actually chosen in competitive elections. The system is essentially a fraud, which is why most ­legal scholars are more comfortable with the pre­sent system of an appointed Court of Appeals. W ­ hether the system can be changed at the lower levels is another question entirely. Attempts to make fewer elected judgeships have been popu­lar neither with legislators and ­lawyers (some of whom aspire to serve on the bench) nor with ordinary voters. Generally, selecting judges is a controversial pro­cess, ­whether through elections or other­wise.

Politics and the Courts An appointed judiciary can be as po­liti­cal as one that is elected. Indeed, a case can be made that almost every­thing judges do is in some sense po­liti­cal. What

St r u g ­g l es f o r P ow e r , P osi t i o n , a n d Acc e ss

207

our system of justice tries to sustain is a courtroom environment in which decisions are made according to the participants’ perceptions of the facts of the case and the relevant laws. If this pro­cess ­were automatic, few cases would come to trial, far fewer than the nearly four million cases filed in New York State in 2018. The United States is one of the most litigious socie­ties in the world, and New York has more ­lawyers per capita than any other US state. The reach of the courts in crime, business, housing, ­family relations, health, and almost all aspects of daily life is enormous and growing. But as much as the role of the courts is expanding, their proportionate share of government power has been in steady decline. New York—­like all of the other US states except Louisiana— is a common-­law state. Judicial rulings are based on a long series of pre­ce­dents dating back through prerevolutionary colonial courts to t­ hose of seventeenth-­ century ­England. The history of the law in New York, however, is one of growing codification. More and more, courtroom procedures, rules of evidence, criminal sentences, and the definitions of criminal be­hav­ior are determined by statute rather than litigation. At the time of the American Revolution, most crimes w ­ ere so-­called common-­law crimes—­meaning that offenses such as assault, rape, manslaughter, and murder ­were derived through the princi­ ple of stare decisis based on the past cases that served as pre­ce­dent. By the end of the nineteenth ­century, virtually all ­these rulings ­were embodied in or superseded by statutory definitions: laws enacted by the legislature and signed by the governor defining—­often in considerable detail—­the vari­ous shades of meaning of offenses such as murder, voluntary and involuntary manslaughter, reckless endangerment, and depraved indifference to ­human life. Codification of the civil law was a bit slower in reaching the legislature, and common-­law traditions continue to play a somewhat stronger role in civil as opposed to criminal cases. What has happened in both arenas is clear. The power to define what the law is has moved steadily if not decisively from the courts to the legislature. This occurred b­ ecause it coincided with two complementary aspects of modernization: the professionalization of the l­egal system and the depersonalization of the l­egal pro­cess. During the colonial period, most t­ rials truly involved juries (and judges) of one’s peers. They ­were community events involving ­people who usually knew one another well. Questions of guilt, damage, and liability ­were de­cided both by considering the ­legal issues and the p­ eople involved. An upstanding citizen could almost always get away with more than the village ne’er-­do-­well, and strangers and outsiders ­were likely to be treated very harshly indeed. In many larger communities, “less than half of all felony defendants went to trial. . . . ​In ­others they w ­ ere ‘tried,’ but in slapdash and routine ways, in ­trials that lasted a few hours or a few minutes at best. And most w ­ ere

20 8 C h a pt e r  6

convicted.”56 The move ­toward codification and away from common-­law crimes was fueled, according to Lawrence Friedman, “by that pervasive feature in American ­legal culture, horror of uncontrolled power. Lawmakers believed that courts should be guided—­ruled—by the words of objective law, enacted by the ­people’s representatives; nothing ­else should be a crime.”57 Almost all major modifications of the statutory code are made at the appellate level ­because t­ hese are the courts that focus on interpretive rather than factual questions. Indeed, a case can reach an appellate court only when the losing party in a trial alleges that the judge has ­either misinterpreted or misapplied the law. How much latitude judges should have in ruling on ­these questions has been the source of many arguments. Terms such as “strict constructionist” generally suggest more about ideology than faithfulness to the written law, but ­there are impor­tant issues at stake.

Judicial Power Statutes passed by the legislature, signed by the governor, and codified in Mc­ Kinney’s Laws of New York State form the backbone of both the criminal and civil law.58 They create the entitlements, crimes, prohibitions, and penalties that give rise to l­ egal disputes. T ­ hose disputes that cannot be negotiated are brought to the courts, which must interpret the ways in which the laws in the code apply to the par­tic­ul­ar case. Sometimes governors and members of the legislature are not pleased with ­these interpretations, and a ­whole new round of lawmaking occurs in which legislators try to restate their “true” intentions. This new statute becomes what is known as a “pocket insert” in McKinney’s (this consists of a page or pamphlet inserted in a pocket in the back of the relevant volume to update the law between editions of the full volume), and it becomes the starting point for ­f uture ­legal disputes.

Reaching and Self-­Restraint A judge who wishes to change the direction of the law must operate within the constraints of a system of separated powers. The judge must recognize the importance of balancing legislative and judicial policies. Courts that reach too far in revising statutory law are likely to find their rulings overruled by subsequent statutes. Mindful of the governor and legislature’s ability to revise the code, and even to alter the structure of the courts themselves, even the most activist judges tend to practice some form of what scholars call “judicial self-­restraint.” Most scholars would agree with William Lasser’s argument that “the modern Court has achieved its power and influence by distancing itself

St r u g ­g l es f o r P ow e r , P osi t i o n , a n d Acc e ss

209

from precisely ­those issues capable of creating full-­scale crises and thereby revealing the limits of its po­liti­cal strength.”59 Generally, New York’s Court of Appeals has avoided an activist role in policy areas that might most threaten its relations with the governor and legislature. As noted in chapter 5, for example, the Court of Appeals has refused to enforce the state constitution’s seemingly clear guarantee of the “aid, care, and support of the needy,” deciding that it is up to the legislature to decide who is needy. Controversies over public funding of education led to a thirteen-­year ­battle in the courts. In 2006, the Court of Appeals reaffirmed its 2003 decision finding in ­favor of the Campaign for Fiscal Equity, noting that while the courts had ­limited authority in determining how state money was spent, the Court of Appeals recommended that additional funding be allocated to the New York City public system.60 The Court of Appeals has played an activist role in the areas of criminal procedure and civil rights, leaving economic issues to the governor and legislature. New York’s courts follow the national pattern described by Justice Lewis Powell as follows: “The irreplaceable value of [judicial review] lies in the protection it has afforded citizens and minority groups against oppressive or discriminatory government action. It is this role, not some amorphous general supervision of the operations of government, that has maintained public esteem for the federal courts and permitted the peaceful coexistence of the countermajoritarian implications of judicial review and the demo­cratic princi­ples upon which our Federal Government in the final analy­ sis rests.”61 Former New York chief judge Wachtler once expressed much the same kind of thinking more positively when he argued that “­there is a place for judicial restraint. But the protection of such ­things as individual and privacy freedoms is a uniquely judicial obligation and responsibility. Judicial restraint should not be confused with judicial abdication.”62

Building a Rec­ord Most judges—­however strong their personal feelings—­operate in an atmosphere of enormous restraint. They fear not only the possibility of arousing the sleeping ­giants of legislative, gubernatorial, and public disapproval but also the judgments of their judicial peers. Most judges do not like to be reversed by higher courts. Most of the time, the cases that confront judges—­even at the appellate level—do not raise profound policy issues. Indeed, it is a rare case that ­matters much to anyone but the ­people in the courtroom. Taken individually, few court cases involve anything more than dispute resolution. Only in the aggregate, over time, do they produce impor­tant changes in public policy. Even in the long run, trial courts make policy. One of the ironies of judicial

21 0 C h a pt e r  6

policymaking is that its most profound impacts may come in areas attracting the least public attention. Alan Tarr cites the shift in child custody cases as an example of such change. From an automatic assumption that the best interests of the child could be served only by awarding custody to the ­mother, divorce cases have increasingly weighed a number of other variables in the decision and given f­athers an increasingly impor­tant role. “In sum, then, cumulative policymaking occurs when the courts, by deciding a series of essentially similar cases, in effect define policy in a given area. Although legislation or rulings by appellate courts may circumscribe the range of judicial choice, trial judges often retain considerable leeway in deciding individual cases. In exercising this discretion, judges rarely announce broad policy standards. Indeed, they may give l­ittle consideration to the broader policy their decisions are creating. Nonetheless, the results of their decisions constitute the state’s policy.”63 When courts do strike out into new areas, the savvy jurist recognizes the importance of what might be called the doctrine of seeming restraint. The more dramatic your decision—­and this is a rule that applies to legislators and governors as well as ­lawyers and judges—­the more impor­tant it is to be sure of your facts and meticulous in marshaling them. In his halcyon days on the Court of Appeals, Sol Wachtler was “a consummate co­ali­tion builder . . . ​willing to compromise for the sake of presenting an image that the court was cohesive, even when it ­wasn’t.”64 Criticizing his pre­de­ces­sor, Chief Judge Lawrence Cook, for his failure to compromise, Wachtler once argued that “when you go into new areas of law, it is impor­tant that the imprint be a strong one. The perception out t­ here when you had a 4–3 decision is . . . ​that the decision was tentative and could be overturned in a c­ouple of years. I thought it very, very impor­tant that . . . ​the new court come out as unanimously as pos­si­ble.”65

The Who of Policymaking Judge Wachtler’s emphasis on consensus reinforces a theme that persists throughout this chapter. Power in politics derives largely from the ability to build enduring co­ali­tions and to convince other p­ eople in politics to make the necessary deals to get at least part of what they want. P ­ eople skills are a very impor­tant part of po­liti­cal leadership, which is in no small part the ability to bring ­people together. Po­liti­cal power also is a function of knowledge. Cases are often won in court ­because one l­ awyer pre­sents a better argument than the other. Court decisions are more likely to stand when they are well argued. Our discussion of power in this chapter focuses on the more manipulative aspects of the power strug­

St r u g ­g l es f o r P ow e r , P osi t i o n , a n d Acc e ss

211

gle in Albany and around the state. It should not obscure the fact that many legislators, governors, and judges gain power through rectitude: they succeed ­because other p­ eople believe that what ­these individuals are ­doing is right. Politicians and government officials, judges not excluded, seek power. Few ­people run for public office for the money. Some do it for prestige, but most do it b­ ecause they want to change the way t­ hings work. They want to be “players,” rather than spectators. The road to being a player, w ­ hether as lawmaker, governor, bureaucrat, or judge, involves perhaps more than anything ­else the ability to sense where you and your goals fit in with your environment. It also is essential to know the rules of the game—­the “how” as well as the who, what, and why of the game.

C h a p te r   7

Making Public Policy

The legislative pro­cess in Albany flows like a deep river on two levels. Below the surface, ­there is a steady stream of relatively “trivial” legislative activity: for example, laws are crafted to bring New York into compliance with new federal guidelines to allow local governments to merge or to take account of a new medical procedure. T ­ hese laws are “trivial” only in the sense that they seldom attract the attention of the media, the general public, or even most members of the legislature. They are impor­tant to ­those who live in the affected communities or need the new medical procedure. A lot of what happens in Albany or in most state capitals is this kind of ordinary, routine business. Closer to the surface of the legislative river are bigger, more controversial issues that may even be covered on the nightly news, such as fights over the bud­get, immigration, and rent stabilization. This stream of legislation in New York concerns a broader public and evokes a dif­fer­ent kind of legislative politics, a flow that is far more centralized, usually more vis­i­ble, and frequently more partisan than the one that runs at the lower depths. What happened in Albany over the past few decades—­and at an accelerating rate ­under George Pataki and Andrew Cuomo—­was that the strong currents of partisanship and centralization deepened, thereby cutting into the normal flow and markedly centralizing the policy pro­cess. The “policy space” has become more crowded, with issues more frequently bumping into one

21 2



M a k i n g P u b l i c P o l i c y

213

another. Party leaders link policies together not ­because they have any tangible relationship to one another but to secure bargaining points. Both George Pataki and Andrew Cuomo put a growing number of often controversial issues into their bud­gets rather than submitting them as stand-­alone bills to promote their own policies or provide bargaining leverage. Although this chapter divides the policymaking pro­cess into stages, from agenda setting through implementation and enforcement, the a­ ctual pro­cess is less sequential than continuous. T ­ oday’s decision often becomes tomorrow’s agenda. One legislative aide described a transportation bill she helped draft in 1988. In consultation with vari­ous interest groups, local officials, and experts in the Department of Transportation (DOT), the bill went through three or four drafts before passing both ­houses of the legislature and being signed by the governor. While writing the detailed regulations (commonly called “regs” in Albany) to implement the law, DOT officials discovered technical flaws, which w ­ ere corrected in a new law passed by the legislature and signed by the governor in 1989. By 1992, both enforcement officials and the affected groups agreed that the law was not accomplishing all that had been intended, and it was revised again. By 1997, a somewhat dif­fer­ent constellation of affected groups returned to the legislature arguing for further changes, producing yet another set of revised regulations, which ­were fi­nally completed in 2002. If an issue such as this w ­ ere controversial, it might receive further feedback in both demands for new policies and even new po­liti­cal configurations, thus blurring the distinction between politics and policymaking. Transportation groups upset about the policy in question might make campaign contributions, lobby for leadership changes, or seek changes to the DOT’s powers or personnel. Such groups might also try to shift the battlefield away from the legislature to the courts by bringing vari­ous kinds of lawsuits challenging aspects of the program. The policy pro­cess is often as much about who decides as it is about what they decide.

The “Normal” Legislative Pro­cess The governor’s annual bud­get bills go directly to the legislature from the second floor. All other bills must be sponsored by legislators. Even a “governor’s program bill,” which may embody a major policy of the administration, must be introduced by a state senator and a member of the Assembly, usually by the chairs of the appropriate committees. ­There is no requirement that program bills be introduced at all, and some are not or are introduced in modified form.

21 4 C h a pt e r  7

In recent years, the number of program bills submitted to the legislature has declined to just ten or twelve a year—­many of them symbolic—as governors have chosen to load their major initiatives into the bud­get. Once introduced, legislation follows a fairly predictable track. Most bills are referred to a committee where they “die.” To become law, a bill must be reported out of committees in both the Assembly and Senate, pass both h ­ ouses in the exact same form, and be signed by the governor. Members of the New York legislature typically introduce more than twice as many bills as are introduced in the next most prolific state, Mas­sa­chu­setts. In 2011–­2012, Peverill Squire and Gary Moncrief compiled the number of bills introduced for all fifty states. Although New York was clearly the leader in bills introduced, it was only eleventh in the number that actually passed.1 Indeed, more than 95 ­percent never made it out of committee. Many of t­hese bills are redundant, and some are exact copies other bills. Although almost all reported bills pass their respective ­houses, historically roughly a quarter have passed only one ­house of the divided legislature. By our calculations, somewhere between 500 and 750 bills w ­ ill pass both ­houses in the same form and be sent to the governor, who ­will veto as many as 20 ­percent of t­ hese. Further, a bill introduced in New York State has a one in thirty-­three chance of becoming law. And the fact is that many bills are introduced with no intent for them to pass. Members’ motives for sponsoring legislation vary, as do member attitudes ­toward legislative activity. Some members focus primarily on constituent ser­ vices, and o ­ thers are relatively inactive. For o ­ thers, as one Assembly aide expressed, “constituent ser­vice and all that is impor­tant but legislators like to score points, and you score more points with legislation.” As one member reported, a bill can be “a ­great way to get ­people off your back.” Even if doomed to failure in a par­tic­u­lar session, a bill can serve as a publicity device or as a statement of princi­ples designed to contrast with other bills. A bill that does not pass in one session must be reintroduced in the next, and thousands are. Old bills, it seems, never die. One of the first functions of a legislator’s staff members at the beginning of session is to dust off the previous year’s bills for re­introduction. This pro­cess is so routine that one member, when asked about a bill he had introduced for twelve years, promptly sent a note to the chair of the committee to which it was referred asking that it be withdrawn. “Oh my God,” he said in our interview, “is that turkey still around?” Sometimes members copy bills from one another. One new member who had narrowly defeated an incumbent in the Demo­cratic primary instructed his staff simply to reintroduce all of his pre­de­ces­sor’s bills. Fortunately for this member and o ­ thers, the laws of copyright do not apply to legislation. Copying also



M a k i n g P u b l i c P o l i c y

215

occurs across state lines, often resulting in considerable interstate uniformity in the ways some issues are addressed. But legislators need not look to other states for ideas when they can find them closer to home. In Edward Schneier’s study of bills in the State Assembly, 11 ­percent of the bills considered w ­ ere borrowed, received, or simply sto2 len from other members. Only one of the bills transmitted from one Assembly member to another came as a gift, in this case from a committee chair to a freshman Demo­crat from a marginal district. Bill theft is far more common, and it is considered a fine art in some legislative offices. One majority-­party staff member whose boss shared a media market with a minority-­party member courted a source in the bill printing office who would provide advance warning of his rival’s legislative initiatives. Taking advantage of a l­ittle used rule that allows a member to “reserve” certain bill numbers, the assemblyman not only stole his rival’s bills but also gave them a lower number, leaving the impression that he was the victim of theft rather than the thief. Quite commonly, legislators put their ideas in a bill by borrowing from ­others. For example a member of the Assembly—­ordered by his physician to reduce his salt intake—­was frustrated to discover that few food labels provided the necessary information. To draft his bill, the assemblyman found an existing law requiring sugar labeling and simply substituted the word “salt” for “sugar” ­every time it appeared. A major source of ideas for legislation is local governments. This not only remains true ­today but also is one of the reasons so many bills are introduced. As noted in chapter 2, New York requires formal state approval of some local laws due to “home rule,” unlike most other states. Generally, local governments require state approval for any local law that involves “a ­matter of state concern,” which the courts have defined as changes in tax laws; education; incurring debt; and many issues in the areas of highways, ­water supply, parks, and civil ser­vice. Tracing the paternity of a bill is a tricky enterprise, if only ­because staff members and lobbyists often hide their true roles while politicians exaggerate theirs. Many bills have parents, godparents, foster parents, midwives, and guardians, many of whom might claim credit or maternity. Still ­others ­will just as vigorously deny involvement. Low levels of interest group activity in initiating legislation, for example, debunk theories that consistently overstate the importance of lobbyists. Groups are an impor­tant source of ideas for legislation, but even allowing for the reluctance of ­either legislators or lobbyists to acknowledge their true roles, more than one bill in five originating with lobbyists underlines the defensive nature of lobbying. Business groups in par­tic­u­lar are more concerned about staving off government action than encouraging it. Many groups,

21 6 C h a pt e r  7

recognizing that close identification with a special interest can be a kiss of death, prefer to work with agendas identified by ­others. ­There is a distinction between an original idea or proposal and the ­actual initiation of legislative action. Bills introduced simply for symbolic reasons are so common that u ­ nless a member follows up with other actions, the member’s bill ­will almost certainly be ignored. Few committees ­will even consider a bill u ­ nless specifically asked and ­until the individual sponsor mobilizes other forces, resulting in someone saying “­there ­ought to be a law.” Securing a strong array of cosponsors—­especially majority-­party members—­from the relevant committee maximizes a bill’s potential success.

The Role of the Governor More striking than in e­ arlier studies is the surprisingly small role played by the governor and executive agencies in initiating legislation. Neither the governor’s office nor the bureaucracy has been a major source of legislative innovation. In Washington, DC, the president’s annual State of the Union address has, to a considerable extent, been treated as his legislative agenda. For months before the speech, bureaucrats and lobbyists work furiously to get their pet proj­ects included. Using that speech and similar formal messages, the respected Congres­ sional Quarterly compiles annual presidential support scores for each member of Congress. It would make no sense to calculate such scores in Albany. Unlike the president’s largely forward-­looking annual address, New York’s governors focus on what they have already achieved. Over the past de­cade, the number of “program bills” offered by Governors Pataki and Andrew Cuomo averaged fewer than a dozen a year. In contrast, presidents put forth 144 presidential proposals each year.3 The separation of powers also works differently in Washington. The po­liti­cal culture is more personal in Albany, where informal conversations between the governor and legislative leaders often take the place of a president’s formal messages. Unlike presidents, New York’s governors have hidden and effective tools, especially around the rules governing legislative consideration of the bud­get, that give them major advantages not available during the regular legislative pro­cess. Similarly, proposals from government agencies—­except for relatively minor technical changes in the law—­are more likely to be folded into the governor’s bud­get than to come directly to the legislature. When governors do push for legislation, they tend—­even more than presidents—to be involved “at the margins” of legislative gestation. Even t­ hose who have appeared dominant “­were actually facilitators rather than directors of change,” a role in which their action is often decisive.4 For example, ­after years



M a k i n g P u b l i c P o l i c y

217

of being ignored in both ­houses, the Assembly approved bills legalizing gay marriage in 2007, 2008, and 2009 that became one-­house bills. Even when Governor Paterson added his support, t­ hese bills never reached the Senate floor. ­Toward the end of the 2010 session, however, Governor Andrew Cuomo weighed in and negotiated a deal with the Senate leadership that resulted in passage of the Marriage Equality Act. Similarly, following the horrific public school shootings in Newtown, Connecticut, Andrew Cuomo de­cided he wanted not only to pass stronger gun control mea­sures but to do so faster than other states or the national government. Pulling together proposed bills circulating around the legislature for years, in 2013 Cuomo quickly patched together the Secure Ammunition and Firearms Enforcement Act (SAFE) and negotiated its passage in a ­matter of days. To strong proponents of gun control, the act did not go far enough. For opponents, it was (and is) an abomination. Almost ten years l­ater, in e­ very rural area in the state, you can still see “Repeal the SAFE Act” yard signs. Both sides agree that it was “a flawed bill.”5 Arguably, one of the reasons governors avoid proposing laws such as this is to avoid such controversies. Burying a bill in the bud­get and negotiating the details in private meetings allows all parties to share the credit and deflect the blame for the bill’s flaws. Most governors, like most presidents, come into office with agendas based on promises made during their campaigns. Yet even when they have portfolios of program bills, their legislative agendas are often more symbolic than concrete, leaving the details for l­ater. Concrete proposals for legislation tend to involve incremental shifts in existing law. Frequently the ideas for such changes come from ­those most affected by existing policies, constituents, and local government officials. Bureaucrats tend to be more cautious, preferring to work around laws that are working poorly rather than proposing new laws. Most ­people with ideas for changes in policy take their prob­lems right to the legislature, where most legislators not only like to introduce new bills but do so frequently.

Crafting Legislation Each lawmaker is assigned a bill drafter to place legislative concepts into proper form. The bill-­drafting offices of the two parties in each ­house are staffed by professionals whose skills inoculate against ­legal prob­lems if bills become law. Although the professionalism of t­ hese offices is beyond question, bill draf­ters do work for the leadership. Unlike the legislative counsel offices in Washington, New York’s bill draf­ters are not bipartisan. Even if they do not always put

21 8 C h a pt e r  7

the leadership’s spin on issues, they can be slow to draft bills that go against party policy, and they may keep the Speaker or majority leader up-­to-­date on bills that might cause prob­lems. Tensions between bill draf­ters and politicians are common. As one bill drafter wrote, Our drafting conference proceeded smoothly as long as the discussion centered on the broad objectives to be accomplished by the new legislation. But, as always, ­there ­were subordinate policy issues of which the committee had not thought u ­ ntil the draftsman raised them and requested the committee’s instructions. Which of two administrative bodies should be entrusted with enforcement of the statute, or should an entirely new authority be created to carry the policy into execution? How severe should the sanctions be, and what procedural rights would be guaranteed to persons affected by the statute without interfering too much with its administration?6 ­ hese tensions do not normally arise when a bill is introduced for symbolic T reasons, and many bills are introduced with ­little prospect of becoming law. Even when a member is simply trying to float an idea for discussion, the relationships between central staff and individual legislators reflect party control. One ju­nior legislator worked with a lobbyist to develop a new approach to school funding. His assigned bill drafter arrived with five other central staff ­people, who detailed the “complexities” of the issue. For months, the proposal languished in bill drafting, u ­ ntil suddenly a leadership bill, only slightly dif­fer­ ent in its approach, emerged. The ju­nior member s­ topped pushing for his own bill. Had he been more se­nior and secure in his relationship with the Speaker, he might have been offered something in return for g­ oing along—as noted in chapter 6, leadership is a two-­way process—­but as on almost every­thing that counts, the legislative pro­cess in Albany flows through party leaders. Choosing to have your own bill or see it enacted is a constant prob­lem for minority-­party members, who soon learn that if they want their programs to have a chance, they must first recognize that the bill ­will not go anywhere with their name on it. One Republican legislator told of usually being able to find a Demo­crat, especially on purely local issues, “for e­ very bill. And some of them ­were actually quite helpful, though of course we both knew that the bill—if it passed—­would have their name on it and not mine.”

The Asking Price and Packaging Program supporters must address a number of strategic questions. First is the asking price:



M a k i n g P u b l i c P o l i c y

219

When a person thinks of selling a car, three figures usually come to mind: the price one would like, the price one expects, and, fi­nally, the asking price. If sellers ask too much, they run the risk of frightening off wouldbe purchasers. If they ask too l­ittle, ­there is no room for bargaining. Framers of a bill face the same prob­lem. In the case of appropriation bills, agencies do not usually request all the money they feel they could profitably use. At the same time, it is impor­tant not to ask too l­ittle. If you d­ on’t do some “padding” or leave room for bargaining, you find, in the colorful words of one official, that “you get cut and you’ll soon find that you are up to your ass in alligators.”7 The prob­lem does not apply only to money bills. Many of t­ hose most active on gun control issues, for example, would prefer an almost complete ban on private owner­ship. But few if any upstate lawmakers, and only a handful of ­those from the city and its suburbs, would go that far. Rather than fight b­ attles gun control advocates know they w ­ ill lose, the gun control movement has focused on issues such as automatic weapons, background checks, and gun safety, where it has both a better chance of success and the ability to use ­these more popu­lar proposals as levers to raise the public’s conscience. The state legislature allows multisection, nonfiscal bills that can be combined into one large bill, sometimes called an “omnibus bill.” Care is given as to which section of existing law is amended first, ­because that can determine which committee has jurisdiction over the bill. ­Because the governor’s line-­item veto extends only to bills increasing expenditures, it is pos­si­ble for a clever bill drafter to “hide” controversial changes in larger packages of popu­lar proposals. The advantage of a narrowly drafted bill is that it focuses attention on the issue and limits the list of potential groups whose opposition might be aroused by a broader mea­sure. The more l­imited the scope, the less the chance that the bill ­will be dragged down by peripheral fights. If the goal is to push something controversial, however, it is sometimes best to surround it with a package of more popu­lar items in an omnibus bill. This strategy is often used to please both sides in a difficult bargaining situation. The packaging of bills is more impor­tant in New York than in Congress or most other legislatures. The reason is that the Assembly and Senate have a long tradition of not amending bills e­ ither in committee or on the floor. Indeed, Senate rules do not allow a committee to amend a bill in any way. Provisions buried in an omnibus bill must be accepted or rejected as part of the package. This is true of bud­get bills as well, and it is one of the reasons governors have loaded more legislative language into the bud­get. What­ever the package, legislative sponsors must also decide how specific to be in detailing what actions ­will be covered, who ­will enforce the policy,

22 0 C h a pt e r  7

and so on. Leaving the details to the administration to develop the specific rules and regulations is fine if you trust the administrators. Vagueness also can make it easier to get a bill through the legislature. The less you say about how, when, and where, the easier it often is to reach agreement in princi­ple. More serious prob­lems arise when trust breaks down. Both Warren Anderson and Ralph Marino experienced frequent skirmishes with Mario Cuomo, but they generally trusted him—­once an agreement was reached—to follow through. Subsequent governors have not fared as well, though Governor Paterson was better known and liked from his prior ser­vice in the Senate. Andrew Cuomo was less trusted than feared, with his confrontational style at once effective and resented. For most of his years as governor, virtually e­ very decision passed across his desk. “Nothing can be de­cided without ­going to the second floor,” a se­nior adviser to a previous governor recounted. “You speak to commissioners, you speak to ­people in the administration—­nothing can be de­cided.”8 Although Cuomo was largely successful in bullying the legislature, the 2021 revelations of his attempt to cover up nursing home deaths and findings of sexual harassment dampened his success overnight and ultimately factored into his resignation.

Relation to Existing Legislation Another key decision a legislative draftsperson must make is w ­ hether or not to create a new statutory title or amend existing language. The prob­lem is confounded by the fact that many existing statutes have been substantially modified by subsequent regulations and court rulings. In some fields of policy, the revised statutes and regulations are so dense that it is almost impossible to alter them. ­Every bill must be accompanied by a memorandum explaining the bill’s general provisions and sometimes a “repealer” provision, showing just which existing laws ­will be eliminated. ­There is, however, no ­legal requirement that ­these memos be true or that bills be clearly written. Sometimes, in fact, they are quite misleading. While most of ­these errors are prob­ably unintentional, deliberate deception is not unheard of. A classic case of deceptive bill drafting was perpetrated once by Robert Moses, head of the Long Island Park Commission. In 1924, Moses drafted a bill defining the commission’s powers. Buried in the bill was a clause empowering the commission to acquire land by condemnation and appropriation “in the manner provided by section 59 of the conservation law.” To most legislators, the word appropriation meant simply “an allocation of funds by the legislature,” and none of them both­ered checking in the 1884 law. But Moses knew, as Robert Caro writes,



M a k i n g P u b l i c P o l i c y

221

that in that section “appropriation” had quite a dif­fer­ent meaning. Worried in 1883 about incursions by lumbering companies into the Adirondack forests, the legislature empowered the Conservation Commission to condemn the forests to preserve them. But during that year . . . ​the lumbermen stripped the parcels of their trees. In 1884 therefore, the legislature passed section  59 of the conservation law, empowering the state to “appropriate” the forest lands and defining “appropriation” as a procedure in which a state official could take possession of the land by simply walking on it and telling the owner he no longer owned it.9 The growth of legislative staff makes it far less likely that a con­temporary Robert Moses could execute such a blatant power grab. Further, some forms of deceptive bill drafting are prohibited by newer rules. Indeed, the requirement that e­ very bill be accompanied by an explanatory memo has its roots in such abuses. But the growing complexity of policy issues increases the likelihood that new statutes w ­ ill impact old ones in ways that even their sponsors may not have predicted.

Sponsorship The first big decision ­after determining what you want is who should be the lead or prime sponsor who “carries” the bill and ­will lead debate if the bill reaches the floor. Majority-­party sponsorship is critical except perhaps on the most trivial local issues. Membership on the appropriate committee helps, and it is even better to have the appropriate committee chairs as your prime sponsors. Next the question of cosponsorship must be considered. Cosponsorship of difficult legislation is a sign of po­liti­cal support that can be used to convince the leadership to allow a bill to proceed to the floor. In New York ­there are both ordinary cosponsors and co-­primes, who can claim partial credit for the bill should it pass. Co-­primes can be awarded a “pen certificate” for their “trophy walls” should the governor sign the bill into law. Sometimes the co-­primes are the more impor­tant sponsors whose work is essential to getting the bill passed, but serving as a co-­prime also is prized by ju­nior members in par­tic­u­lar as a symbol of their supposed effectiveness as legislators. Se­nior committee chairs ­will often assign routine “departmental bills” to ju­nior members of the committee to “carry” as the prime sponsor. The committee chair then becomes a co-­prime, sending a signal and joining the floor debate if opposition appears. In some cases, a member can gain a mea­sure of immortality through his role as a prime sponsor.

22 2 C h a pt e r  7

Moving a Bill Congressman Jerry Nadler—­a former Assembly member—­describes the Albany legislative pro­cess as “a big wind tunnel where you can see legislation go in at the front, but you sometimes ­don’t see what happens to it inside ­until it is too late. T ­ here are a lot of places inside that wind tunnel where a bill can stick and your job is to track its pro­g ress as closely as you can.” Even when the forces are with you—­when support is strong, opposition weak, and resources abundant—­there are no sure ­things in politics. But the wind tunnel in Albany, as Congressman Nadler now concedes, is far less mysterious and complex than in the Congress. In Albany, success depends on convincing your party’s leadership that a bill is worthwhile; in turn, the party leaders must convince the governor and the leadership of the other h ­ ouse that the bill should go forward. Although in Albany—as in Washington—­there are many places in the legislative wind tunnel where a bill can mysteriously or perversely become stuck, the general rule is that it takes only one negative decision to kill a bill, and it takes many positive steps to make it a law. Having drafted a bill and found what­ever cosponsors seem useful, legislators hope that the leadership ­will accept the suggestion for committee referral. The bill must receive a sponsor’s request for committee consideration (called a “99 request” in the Assembly or a “form 63” in the Senate). As lobbyists and citizens become more sophisticated in realizing that a bill that is not “99’d” ­will not be considered, most bills now are not given that formal designation, even if the sponsor may privately let the committee staff know other­wise. Conversely, when a bill ­will not pass the committee, a majority-­party sponsor ­will receive a phone call from the chair’s office asking that the bill be “held at sponsor’s request.” This saves the chair from having to give the committee a negative recommendation and saves the sponsor from the embarrassment of losing. Even when they have the votes to win, most sponsors withdraw such bills b­ ecause they know it is essentially the committee chairs who determine w ­ hether bills ­will even be voted on and that inventive chairs can find other ways to kill bills further down the road. In most US legislatures, t­ here are procedures for bypassing or “discharging a bill from committee.” Technically, it would be pos­si­ble in New York for a majority of ­either ­house to force a bill out of any committee and bring it to a vote, but the pro­cess is so cumbersome that no one can recall it ever having happened. The exception—­and it is a big exception—is that the Rules Committee in ­either ­house can pull a bill from any committee and reassign it to Rules. The most vis­i­ble legislative proposals tend to be governor’s program bills or ­those sponsored by the legislative leadership. Program bills usually are taken



M a k i n g P u b l i c P o l i c y

223

seriously but are likely to pass only when they have leadership support. Bills that list the Speaker or Senate majority leader as the sponsor generally are considered shoo-­ins in their respective chambers but have no par­tic­u­lar standing in the other body. “Departmental bills,” though not of the same status as governor’s program bills, also are given serious attention at the committee level. Indeed, departmental bills usually are carried by the chair of the committee of jurisdiction or someone the chair has designated for that honor. Such sponsorship does not mean that the committee chair necessarily supports the legislation. Sometimes a committee chair ­will sponsor the bill to control or even kill it. Bill sponsors cannot guarantee ­whether or not a bill can pass, but they can prevent bills from passing.

Dual Committee Reference ­ here are three committees in each h T ­ ouse that have “dual reference” power. ­These are the Codes Committees, Assembly Ways and Means Committee, Senate Finance Committee, and Rules Committees. Theoretically, the Codes Committee can demand jurisdiction (called a “flag” for the mark that is put next to the bill) only if the bill affects the criminal code; Ways and Means and Finance can do so only with bills that have fiscal implications. ­These committees also should only consider the bill’s code or fiscal implications, and not the merits of the bill. The real­ity, however, may be that a legislator w ­ ill have to fight for the bill on the merits all over again as if it ­were in the committees of jurisdiction. The Ways and Means Committee is known as the Bermuda triangle, as t­here are bills that go in and are forever lost. What is particularly difficult about this committee is that it rarely schedules public debate. The committee staff can make a negative recommendation; the chair ­will report that recommendation; and the bill is dead. Bills that are introduced early in the legislative session and reported out of the standing committee are placed on the legislative calendar—­published each Monday—­that schedules floor debate. Starting in mid-­April, the number of bills reaching the floor increases to a point at which the Rules Committees take jurisdiction. Long ago the Rules Committees almost never met, with the Speaker and majority playing their putative role. Although they are unlikely to go around the leadership, both committees now actually meet, and only the bills they report go to the floor. Thus the end-­of-­session flow of legislation, once regulated almost entirely by the Speaker and Senate majority leader, has changed. One sure sign that the legislature was nearing adjournment was the line of sometimes quite se­nior members queued outside the office of the Speaker’s chief counsel looking to get their bill scheduled on the floor or placed

22 4 C h a pt e r  7

on the Assembly trade list. T ­ hose lines are still t­ here, but the Rules Committee now provides another road to the floor.

On the Floor When a bill is sent to the floor from a committee, it is given its first “reading” and printed on the calendar. The next day that the calendar is printed, the bill is on second reading. Not ­until it appears on the official “order of third report” can it come to a vote. The Rules Committee can make special exceptions—­ saving a day in the process—by reporting bills to the “order of special report.” Still the governor has the power to compress the pro­cess into a single day by issuing what is known as an “order of necessity.” ­These fast-­tracking devices are used only in the hectic days of putting the bud­get together or end-­of-­session rush. They are impor­tant in New York ­because of its tradition of not amending bills. Thus if the Assembly ­will only agree to a Senate bill containing a clause not in the original Senate version of the bill, the only way to amend the Senate bill is to report a new draft that would other­wise have to “age” three days before coming to a vote. Again, the revitalized Assembly Rules Committee has become a more impor­tant force. Almost as quickly as bills move to the floor, they can be withdrawn through a pro­cess known as “starring.” At any time the sponsor of a bill requests, a star can be placed on the bill. In the Senate, stars also may be placed on bills by the majority leader, a power relinquished by the Speaker in the Demo­cratic study group reforms of the 1970s. A star may be removed only by the sponsor or, in the Senate, by the majority leader. In practice, stars are almost always leadership devices, as it would be folly for an individual legislator to refuse to star a bill that the leadership opposes. As a general rule, stars are used to provide bargaining time, giving party leaders and concerned lobbyists time to work out deals with the other ­house of the legislature and governor. Many if not most stars are requested by bill sponsors, but the leadership’s power to effectively keep bills off the floor is unique among states. Former senator Franz Leichter once described leadership stars as the “most absolute, undemo­cratic procedure that can possibly exist.”10 Yet the real­ity in both ­houses is that, with or without the use of stars, control of the Rules Committee and the calendar gives the leaders of both ­houses a mea­sure of agenda control found in no other state legislature. ­After the Senate reforms in 2005, the chair of the Senate Environmental Conservation Committee pushed a bill through to the floor before the new deadline requiring approval by the Rules Committee, which killed a similar bill the previous year. Despite the fact that the bill had been reported by an eleven-­to-­one majority in committee and reportedly had the support of



M a k i n g P u b l i c P o l i c y

225

more than three-­quarters of the Senate, the majority leader simply refused to put it on the “active” list, and it died.11 Studies of legislative parties emphasize the leadership’s agenda-­setting powers by manipulating available options and indirectly inducing ­others to structure, bias, and block issues.12 Both directly and indirectly, the agenda-­setting powers of New York’s majority-­party leaders are extraordinary. As in all questions of party leadership, however, ­these are powers of agency and command. Leaders remain leaders by gaining and maintaining the support of their respective party conferences. How much leaders respond indirectly to their conferences in exercising agenda control cannot be mea­sured, but t­here is abundant evidence that the many hours each party spends in conference are in no small part devoted to such questions. A telling example can be found in the Assembly’s consideration of capital punishment. When the legislature convened in 1996, Speaker Sheldon Silver—­a supporter of the death penalty—­argued in conference that the party would suffer if they did not allow the issue to come to the floor. On a close, hotly contested vote, the conference went along. In 2005, when the statute was ruled unconstitutional by the Court of Appeals, Silver proposed passing a new bill correcting the flaws found by the court. The conference turned him down. Clearly the conference, not the Speaker, was the agenda setter.

Debate Full-­scale debate is as rare on the Assembly and Senate floors as it is in committee. On session days—­typically Mondays, Tuesdays, and Wednesdays—­the clerk calls the bills on third report in the order listed, and votes are taken without debate on ­those that are not controversial. A special consent calendar allows ­these routine ­matters, mostly dealing with local issues, to move quickly ­unless ­there is dissent. When all of the noncontroversial bills are disposed of, consideration of more controversial bills begins. Although the majority party always is in firm control and almost never loses a vote, ­there are rare occasions in which debate can be both vigorous and influential. Even the usually irrelevant minority party can be impor­tant if it uncovers real substantive prob­ lems. Minority-­party arguments, moreover, may portend the kinds of prob­ lems a bill may encounter in the other ­house. If significant prob­lems emerge on major bills, the leadership w ­ ill recess to the conference room for a candid, intraparty strategy session. If the ­really unexpected has happened, a bill at this point may be starred pending preparation of a new bill. Generally, however, midsession party conferences are used to count heads, make sure t­ here are enough votes to pass the bill, and discover how many members (if any) ­will be voting with the opposition.

22 6 C h a pt e r  7

Voting Almost no decisions in the New York State legislature are made by voice vote or show of hands. Instead, votes are recorded electronically through a roll call that becomes public rec­ord. For many years, fast roll calls—in which the clerk called the names of the first and last persons in the alphabet, along with the majority and minority leaders—­predominated. All members who had activated their electronic devices w ­ ere then recorded as having voted in the affirmative w ­ hether they ­were actually pre­sent or not. T ­ hose who wished to vote no selected the “no” button to have their dissents recorded. Still used are “party votes,” in which party leaders rec­ord their respective members as voting. Exceptions can be made, but all Republicans are recorded as voting no and all Demo­crats yes ­unless a legislator specifically requests other­wise. It is a rare day that individual members make such requests. Fi­nally, slow roll calls occur when individual members’ names are called. While the majority party is not ­going to lose—­the leadership does not permit bills to come to a vote if they do not have a winning margin in advance—­there are frequently unpredictable votes. Most in­ter­est­ing are ­those occasional votes in which the parties do not take positions. The gay marriage bill, for example, became law in part b­ ecause the governor secured an agreement from the Senate Republican leadership to let individual members vote their consciences. With rare exceptions, no bill that comes to the floor of ­either ­house is ever defeated. As is true for Congress and in most states, a variety of organ­izations rate the members of the legislature on the basis of their roll-­call voting rec­ords. Thus, the American Federation of ­Labor and Congress of Industrial Organ­ izations (AFL-­CIO) evaluates members in terms of their pro-­labor rec­ords; the American Civil Liberties Union in terms of members’ support for civil liberties; and the Farm Bureau in terms of the percentage of agricultural issues on which individual legislators voted a “pro-­farm” position. While the rating numbers generated by t­hese groups provide a rough index of where individual members stand, the pervasive influence of the parties makes ­these ratings considerably less meaningful in New York than in most other states.

The End of Session It is hard to describe the “end-­of-­session rush” in the last few weeks of the legislative year, and it must be witnessed to be fully appreciated. Legislative sessions invariably end with a flurry of activity marked by two to three weeks of intensive work, usually capped by a weekend and an all-­night session that can



M a k i n g P u b l i c P o l i c y

227

last well past dawn. In most legislatures, the flow of business follows the same pattern. Early in the session ­there is a flood of initiation, with dozens, even hundreds, of new bills coming from the printer e­ very day. This flood of proposals slows to a trickle as the session winds down, but the pace of enactment flows in the opposite direction. While the leadership’s attention is focused on the bud­get in the early months, committees are getting or­ga­nized, and bills are being circulated for cosponsorship, yet almost nothing happens on the floor. A tourist venturing into the Senate or Assembly chamber on a cold Tuesday in February might see the legislature convene, spend an hour or so welcoming vari­ous visiting groups, engage in perfunctory debate on one or two bills (already defeated in the other ­house the year before), vote, and adjourn. That same tourist arriving in the heat of late June would see bills debated in a m ­ atter of minutes, witness ten or twenty roll calls an hour, and see a legislature sometimes in session (or in party conference) for upward of twenty hours a day. In an extreme case in 2005, 36 ­percent of all major legislation passed the Senate in the last three days of session, and 40 ­percent in the Assembly.13 ­There are a number of institutional reasons that dictate this end-­of-­session rush. First, it naturally takes time for bills to work their way through the legislature, especially if they are “compromise bills,” which feature a lot of negotiations. Second, a lot of tough bills could be negotiated forever if ­there ­were not a deliberate feeling of “do it now, or the train w ­ ill leave the station.” This is a concept that forces reluctant negotiators to make some very tough decisions and reach a bottom line that—­without a deadline—­they might never accept. Third, it is not uncommon, particularly in divided government, for one bill to be linked to another such that Senate ac­cep­tance of an Assembly mass transit package becomes contingent on Assembly ac­cep­tance of a highway bill. Fi­nally, many bills are linked po­liti­cally in passage with other bills that may not be related in substance. One midwestern party leader talked of “keeping as many House-­filed [bills] in the bank as pos­si­ble,” and the former Speaker of the Vermont h ­ ouse put it in terms of “the normal hostage taking of bills,” practices that seem to apply throughout the country.14 At the end of session, many bills w ­ ill be considered together, resulting in sloppy bill drafting by exhausted staff who do not sleep much the last week of session. The bills are then voted on by equally tired lawmakers. In the end, this pro­cess takes on a life of its own, and nobody r­ eally controls the situation. Exhausted lawmakers at their desks at 5 a.m. wait for revised bills to be delivered from the printer. The session continues ­until the ­bitter end ­because ­people are afraid that agreements w ­ ill unravel if too much time lapses ­after agreement is reached. While the frantic pace sometimes allows ­really bad legislation to sneak through, more frequently a number of prob­ably useful proposals slip through the cracks.

22 8 C h a pt e r  7

Resolving Differences between the Assembly and Senate To be sent to the governor, a bill must be passed in identical form by the Assembly and Senate. A bill that has passed one ­house is treated as a new bill in the other h ­ ouse and referred to the appropriate committee. If the committee chooses to send the bill to the floor unchanged, it is called a “uni-­bill,” and if passed it can be referred directly to the governor. If, however, the committee chooses to pass its own bill—­even if it differs in only the tiniest detail—it cannot become law without further action by the other ­house. On routine policy issues, when the Assembly and Senate pass dif­fer­ent versions of the same bill, the committee chairs or their staffs w ­ ill meet to see w ­ hether a compromise can be reached. The Senate or Assembly may then agree to pass the other body’s bill or an entirely new bill—­embodying what­ever compromises have been reached—in both h ­ ouses. When relations between committee chairs are not cordial, lobbyists frequently act as go-­betweens in t­ hese negotiations. On larger issues and when negotiations fail, bills are forwarded to the leadership. In some instances, when both sides want to act but are unable to reach common ground on the details, high-­ranking staff assistants may attempt to work out a deal in consultation with their respective committee chairs. In many cases, no action is taken b­ ecause nobody r­ eally wants an agreement. U ­ nder divided government, the overwhelming majority of bills passed by both the Assembly and Senate ­were one-­house bills passed for ideological reasons or as bills to please individual members or lobbyists. When a bill is rejected in one ­house yet of importance to the other ­house, the bill goes on a list of items to be negotiated by the party leaders e­ ither as part of the overall bud­get deal or during the end-­of-­session rush. For individual Assembly and Senate members—­committee chairs in particular—­and for lobbyists, a key test of their influence lies in their ability to get party leaders to put their bills on the “trade list.” Even if the bill is passed by both ­houses, it must still go to the governor before it goes on the books. In Congress and in all but two other state legislatures, differences between the two ­houses are often worked out in conference committees drawn from the appropriate standing committees of each ­house. New York has experimented with such committees putting together the bud­gets (as we ­shall see in chapter 8) but they have yet to become a consistent part of the legislative pro­cess in Albany. ­Whether the party leaders of ­either ­house would ever surrender their control over inter­house negotiations is problematic at best.



M a k i n g P u b l i c P o l i c y

229

The Governor Votes When a bill is sent to the governor, he has ten days in which to veto or sign it, or thirty days ­after the legislature has adjourned. If the governor fails to take action on a bill within ten days, it automatically becomes law, as if he had signed it into law. One peculiar feature of New York politics, however, is the relatively high frequency of gubernatorial vetoes that are almost never overridden. The power of the veto is nearly absolute. Technically, the governor also can “pocket veto” a bill by simply not acting on it a­ fter the legislature has adjourned. Customarily, New York governors have not used this device and in recent years could not have, b­ ecause the legislature has not formally adjourned. Stung by vari­ous governors who made unpop­u­lar “interim” appointments to the courts and vari­ous agencies, the Assembly and Senate have ­adopted the practice of “recessing” instead of adjourning ­after completing regular business. To meet the technical requirements of the constitution, an assemblyman and senator from the Albany area actually go to the capitol ­every weekday to convene a “session” that lasts just long enough for a quick prayer from the chaplain and a banging of the gavel. To give the governor time to consider the enormous flow of bills coming out at the end-­of-­session rush, the legislature has ­adopted the pro­cess of also using ­these mock sessions to spread the flow of bills to the governor. Thus a bill passed in June may not formally be “sent” to the governor ­until September, and only then does the ten-­day clock begin to tick. When a bill is sent to the governor, a “bill jacket” is created, and the public is invited to submit comments. Most affected interest groups and a surprisingly large number of ordinary citizens submit statements or letters that are available for examination in the capitol library. Less formally, the governor’s counsel consults with the top officials of agencies most affected by a potential new law and, if ­there are fiscal implications, with the bud­get office. Most vetoes are not surprising, and many are anticipated and even welcomed. “As Governor Rocke­fel­ler once explained, legislators went along with bills to please individual members as a courtesy on local ­matters only ­because they ­were confident ­there would be a gubernatorial veto. ‘I’ll be the guy who vetoes the bill,’ the governor said. This is all part of the act.”15 Legislators occasionally are surprised when the governor fails to veto a bill. This is apparently what happened in 1994 when Governor Mario Cuomo signed a bill he was “supposed” to veto giving Staten Island the right to consider seceding from New York City. Calmer heads prevailed in 1995, when the bill was in fact vetoed. Through their line-­by-­line ability to veto increases in bud­get items, New York governors have made the veto power a significant source of po­liti­cal influence.

23 0 C h a pt e r  7

They can both block programs that they do not like and use the threat of a veto to secure support for ­things they want. Threats of vetoes are an extraordinarily useful tool in dealing with the Speaker and majority leader during bud­get negotiations.

The Governor and the Legislative Pro­cess Beyond use of the veto power, the governor is involved in the legislative pro­ cess both informally when negotiating with party leaders and formally in the case of bud­get and program bills by the exercise of certain procedural powers, as well as through the issuance of executive o ­ rders that carry the force of law. The governor cannot introduce a nonbud­getary bill without having a member of the legislature as its sponsor. The governor’s role in initiating legislative issues has been ­limited, in terms of the percentage of bills in the Assembly and Senate that can be traced to the executive, but the governor’s agenda-­setting powers are enormous in terms of the ability to move issues into the bud­get or active status ­later in the session. Bills that have been languishing in Albany for years—as one-­house bills or going-­nowhere-­at-­all bills—­ achieve new status when they are endorsed by the governor. Except during their first terms, when ­there are campaign promises to fulfill, governors are seldom policy entrepreneurs. What­ever new directions they take usually are borrowed from someone e­ lse. Still, no other actor in the system can so quickly and surely make issues ­viable. When the governor gets serious about an issue, ­others get serious as well. Once an issue is in the policy stream, the dynamic shifts again. In many ways—­even with program bills—­the governor is just another lobbyist. Although the governor can call in f­ avors from fellow party members, divided government requires some level of negotiation, and even with Demo­crats in control of all three branches, cooperation is far from automatic. Thus, in the “normal” legislative pro­cess the modern (post-­Rockefeller) state legislature plays an increasingly impor­tant role, rising to a coequal and sometimes preeminent position. Nevertheless, the legislature has never been able fully to assert its in­de­pen­dence in crafting the bud­get (see chapter 8). The more that the flow of bud­getary politics overlays the stream of other business, the more the governor is again the dominant player. Most impor­tant, the governor has the last word, especially on the bud­get. Through regular and line-­item vetoes, the governor has the last say in the bargaining pro­cess. Although undertaken at some risk to their long-­term credibility, governors may even use their veto powers to void deals they had previously agreed to with legislative leaders.



M a k i n g P u b l i c P o l i c y

231

Traditionally, the year in Albany—or half year, as it usually played out—­ was divided into three segments. The first period, extending from the first week of January ­until early March, was one of organ­ization, introduction, and preparation for bud­get negotiations. Public hearings on segments also w ­ ere held during ­these early weeks. Individual legislators introduced bills, the governor introduced the bud­get, committees began to pro­cess bills, and party conferences increasingly focused on the bud­get. Relatively ­little of substance happened on the floor of e­ ither ­house. In early to mid-­March, the bud­get shifted into a higher gear, taking up most of the schedule. For members who had been arriving in Albany on Monday and heading home on Wednesday after­noon, five-­day sessions became the norm. Once the bud­get was passed, the pace receded, with both h ­ ouses meeting only sporadically in April and early May. Extending into June, the third phase of the pro­cess was the time for home rule bills, revisions in the criminal and civil codes, and most of the major (and minor) proposals for nonbud­ getary changes in policy. In the 1990s, frequent bud­get deadlocks threw this schedule into chaos sometimes extending into early summer. ­Because impor­ tant bud­get issues ­were negotiated by the governor, Speaker, and Senate majority leader, rank-­and-­file members sat in their offices swapping rumors with lobbyists and with one another, waiting for something to break. In 2009, Governor Paterson transformed the bud­getary pro­cess, virtually eliminating late bud­gets (see chapter 8 for a fuller discussion). While this has returned the legislative calendar to its traditional three-­stage timeline, the dynamic is dif­fer­ent. With characteristic bluntness, former Speaker Mel Miller once said that “politics is the bud­get. Every­thing ­else is crap.” ­Whether or not this was true in the 1990s, the observation is not far from the real­ity ­today. ­There are issues that transcend Miller’s epithet in temporal and po­liti­cal terms; however, t­ here is ­little doubt that the bud­get has become the two-­thousand-­ pound gorilla of legislative politics, crowding or scaring almost every­thing ­else out of the arena. Still, the policymaking pro­cess neither begins nor ends with the legislature. Governors and bureaucrats make policy, and so do the courts.

Administering and Executing the Laws The starting point for coherent administration is sound legislation. The clearer and more specific the law, the more difficult it is to bend its intent. Second in importance is the very structure of the administrative branch. As Max Weber noted in his classic essay on bureaucracy, it is an organ­ization in which information flows up and o ­ rders flow down. The lowliest clerks let

23 2 C h a pt e r  7

their superiors know what is being done and how. That information is digested and combined with reports from other low-­level agencies and reported to the next level up and eventually to the department head. ­Orders from the top similarly flow smoothly from commissioners in Albany through vari­ous agencies to lower-­level offices in Albany or to field offices in Elmira, Brooklyn, or wherever. Weberian theory aside, this is not quite the way in which real-­world bureaucracies work. Without a certain amount of informal communications and ­favor trading, the administration would grind to a halt. Too much, and the system becomes corrupt. Approximately 231,000 p­ eople are employed by the state of New York, with roughly 10,000 of them in managerial positions.16 More than 60 ­percent of ­these bureaucrats are found in five agencies: Corrections, Developmental Disabilities, ­Mental Health, Transportation, and the State University of New York. The vast majority of t­hese workers are ­unionized and spend most of their ­careers working for the government. Historically, the state has taken steps to guard against favoritism and corruption in applying the laws. A few weeks ­after the federal government passed the Pendleton Act (1883), New York governor Grover Cleveland signed a bill establishing a similar state civil ser­vice system, stipulating that all vacancies in the executive branch would be filled by ­those scoring highest on objective exams so that promotions would be based on merit and civil servants could neither be active in politics nor forced to contribute to campaigns. The bill also required local governments to implement comparable reforms. According to Joseph Zimmerman, “the New York State civil ser­vice system has a reputation as one of the best systems in the nation.”17 Since its establishment, charges of corruption, gross incompetence, and po­ liti­cal bias have seldom been heard, but ­there is a sense that Albany has become increasingly bureaucratic, rigid, and opaque. The suspicion that major corporations and privileged individuals sometimes get special treatment is widespread. At the same time, many business leaders feel that government agencies are too meddlesome and arbitrary in their decisions. Conservatives contend that rigid regulations increase the cost of d­ oing business in ways that particularly discourage innovation and growth. Larger firms sometimes argue that they are especially singled out by overzealous regulators, and ­there is often justification for this complaint. State law, for example, prohibits a form of deceptive advertising that features only the low-­end price. If a week in Paris costs $999 to $1,999, the advertisement must include both prices in the same font size. With thousands of products advertised daily, the Consumer Affairs Division of the Department of Law tends to enforce the law against only the largest offenders. Thus, a small travel agency can prob­ ably get away with an advertisement that Viking Cruise Lines cannot use.



M a k i n g P u b l i c P o l i c y

233

A certain amount of unevenness in the enforcement of the laws is inevitable. It would be prohibitively expensive and virtually impossible for the attorney general to monitor ­every travel advertisement. Similarly, ­there is no way that the state’s Department of Environmental Conservation can monitor all disposals of hazardous waste. The department’s objective is “defined in terms of managing most of the waste, not most of the generators.” The technical difficulties associated with enforcement are manageable ­because “fewer than 150 companies produce nearly three-­quarter of all the state’s hazardous waste.”18 Studies of public administration seek a workable balance between rigidity and discretion and between enforcing laws evenhandedly and remaining sensitive to individual cases. Once the laws are made and the administrative structures are in place, how do you fill in the details of laws in ways that are at once transparent, objective, and in keeping with legislative intent? Given the complexity of the prob­lems confronting the state, we cannot expect a legislature composed largely of ­lawyers, teachers, and businesspeople to develop detailed rules governing all aspects of public policy. They can provide general guidelines for Medicaid, but it would be unrealistic to expect the Assembly and Senate to set reimbursement limits for treating strep throats, removing tonsils, or putting casts on broken ankles. Legislators can establish general rules for highway safety but have neither the time nor the training to decide at what point on Route 22 in Millerton the speed limit should decrease from fifty-­five to forty-­five miles per hour (or should it be thirty?). While it is inevitable that bureaucrats must be given some discretionary powers, t­here must be limits as well—­limits that sustain the rule of law. If you give administrators too much flexibility, citizens cannot know what rules they need to follow. Is it safe to go seventy-­five in zones with limits of sixty-­five miles per hour? Is this a m ­ atter of fixed practice, which we can all understand, or of negotiations with a state trooper? The answer increasingly has been to delegate powers to the bureaucracy, less in the form of individual discretion than through the administrative pro­cess of rulemaking.

Rulemaking Early in the state’s history and even ­today in some small towns, governments and citizens interacted face-­to-­face. Laws w ­ ere administered by p­ eople who ­were known to their clients, and town officials exercised considerable discretion. The demo­cratic creed takes pride in providing what John Adams’s original draft of the Mas­sa­chu­setts constitution proclaimed, “a government of laws and not of men.” A hallmark of modernization underlines a shift from interpersonal relations to decisions based on laws.

23 4 C h a pt e r  7

An amalgamation of statutory law and bureaucratic discretion, rulemaking is the pro­cess through which agencies or departments develop and promulgate the details of statutes passed by the legislature and signed by the governor. Rulemaking is ­limited by the agency’s defined role and specific statutory authority. In New York, the Department of Agriculture and Markets outlines the broad areas of administrative authority that the agency can exercise. Statutes—­a law to encourage organic farming, for example—­specify the par­tic­u­lar authority to be exercised, and rulemaking fleshes out the details. Eggs are prob­ably not discussed in the statute, but poultry farmers who want to know how to sell organic eggs must find this topic in the rules and regulations drafted by Agriculture and Markets. At both the national and state levels, a number of procedural safeguards appear in the pro­cess of crafting the regs. They “are products of the bureaucratic institutions to which we entrust the implementation, management, and administration of our law and public policy. . . . ​The rules issued by departments, agencies, or commissions are law; they carry the same weight as congressional legislation, presidential executive ­orders, and judicial decisions.”19 The federal Administrative Procedures Act (1946) created regularity and predictability in the rulemaking pro­cess, and its general outline has been copied by many states, including New York in 1975. In New York, new regs do not go into effect within thirty days of publication or u ­ ntil the public has an opportunity to offer comments. All new rules must be submitted to the Administrative Regulations Review Commission (ARRC), which was created in 1978 and comprises three members of each ­house of the legislature. In practice, the rulemaking pro­cess in New York begins with the statutory guidelines set for the agency. Before the new regulations are filed by the secretary of state, they are cleared by the governor’s office, particularly if the regs have bud­getary implications. Although the governor’s office often suggests modifications at this point, legislators and lobbyists usually wait u ­ ntil the public comment period to make their case. When administrators and legislative committee chairs have good working relationships, preliminary conversations regarding the intent of the statute may already have occurred. In the formal commentary stage, interest groups, local governments, and individual legislators ­will be heard. In about one of ­every ten instances, the ARRC ­will contact the agency with objections to a proposed rule. ­Whether ­these suggestions come from the ARRC or from individual legislators, agencies tend to be highly responsive. If not, ­there is always the possibility that the legislature ­will pass a new statute or simply threaten to do so. At both the federal and state levels, administrative procedure acts have made it difficult for bureaucrats to issue regulations that clearly subvert legislative



M a k i n g P u b l i c P o l i c y

235

intent, but some bending of the guidelines is not unusual and may even be encouraged. Interest groups and legislators who are attentive during the rulemaking stage are not always representative of t­ hose who w ­ ere first involved in passing a bill. For example, whereas all legislators participate in passing an insurance bill and a number of lobbyists may be involved in the legislative pro­ cess surrounding it, the audience during the rulemaking stage is likely to consist largely of legislators on the insurance committees and lobbyists representing the industry. With copious training and experience, the civil servants whom lobbyists confront are likely to be far more knowledgeable of the issues than ­were the legislators who passed the original statutes. Rulemaking, as Cornelius Kerwin suggests, “­frees Congress to attend to many more prob­lems than it would other­wise have time to deal with. It relieves Congress of the burden of maintaining and managing enormous staffs who possess the expertise essential to refining the operating standards and procedures for a myriad of programs. Fi­nally, it is the best means yet found to break legislative deadlocks and to avoid difficult po­liti­cal decisions.”20 At the same time, “rulemaking has a fundamental flaw that violates basic demo­cratic princi­ples. ­Those who write the law embodied in rules are not elected; they are accountable to the American p­ eople only through indirect and less-­than-­foolproof means.”21

Rule Enforcement In most agencies, rulemaking is separate from implementation. The legislature sets the speed limit, the Department of Transportation decides where the speed limit w ­ ill change from fifty-­five to thirty, but it is the job of a state trooper or local police officer to decide ­whether ­going sixty-­three or seventy in a fifty-­ five-­mile-­per-­hour zone is “speeding.” Citizens and civil servants alike are often frustrated when rules and realities collide. When a bureaucrat says, “Sorry, but I d­ on’t make the law” as she writes a ticket, she may actually mean it. Compounding the prob­lem of rule enforcement in New York is the state’s decentralized system of governance. More than most states, New York places the prob­lem of implementation in the hands of “street-­level bureaucrats” or local officials.22 Thus, rulemaking is separated from enforcement by being not only in a dif­fer­ent office but at a dif­fer­ent level as well. In 2021, for example, as the state changed its guidelines about social distancing implemented during the pandemic, local rules varied, so that a restaurant in Queens was ­limited to 50 ­percent of capacity, while a few hundred yards away in Nassau County the limit was 75 ­percent. Similarly, the Board of Regents sets the basic standards of educational quality for the state, but ­actual implementation falls to hundreds of elected and

23 6 C h a pt e r  7

appointed school boards. Local control of education means that the board can mandate vari­ous standards of testing, teacher training, and class size but w ­ ill constantly strug­gle to see that ­these minimal levels are actually sustained. During the pandemic, the state imposed broad guidelines, but it was left to local school boards to decide what mix of online and face-­to-­face classes would be scheduled in which schools and when. The Board of Regents—­like most state agencies—­spends a good deal of its efforts enforcing both statutes and its own regulations with re­spect to local districts and, in many cases, charter schools and other semiprivate organ­izations as well. “Contracting out” has not been as popu­lar in New York as in other states, but a number of ser­vices are administered by private corporations and nonprofits. W ­ hether it is a private carting firm that collects the trash in Buffalo or a social ser­vice agency’s drug treatment center, implementation is removed from unified hierarchical control. Rule enforcement is thus further divorced from rulemaking. T ­ here are strong arguments for privatization and local control, but the price of both is an elaborate structure of audit and control. The more policies are administered by persons who are not directly responsible to agency supervisors, the greater the need for monitoring ­these individuals’ actions and assuring equity. The resulting proportion of New York’s civilian employees engaged in the job of managing, controlling, and auditing the o ­ thers is extraordinarily high. As Herbert Kaufman wrote in his classic book on red tape, “­were we a less differentiated society, the blizzard of official paper might be less severe and labyrinths of official pro­cesses less tortuous. Had we more trust in one another and our public officials and employees, we would not feel impelled to limit discretion by means of lengthy, minutely detailed directives and prescriptions or to subject public and private actions to check a­ fter check. . . . ​Diversity, distrust, and democracy thus cause the profusion of constraints and the unwieldiness of the procedures that that afflict us.”23 While many citizens see ­these elaborate checks and controls as necessary, ­those who work closely with or in government agencies find them cumbersome at best. ­There are just too many rules to follow and file, so many that it is often hard to get anything done. Why then do we tie ourselves in all t­ hese knots? Or, more to the point, how do we escape them?

Bureaucratic Discretion On the Thomas E. Dewey Thruway between New York and Albany, the posted speed limit varies between fifty-­five and sixty-­five miles per hour. That is the law. Or is it? The authors can attest from experience that one can drive sixty-­



M a k i n g P u b l i c P o l i c y

237

five in the fifty-­five zones with no fear of being arrested. Generally you can “get away” with sixty-­seven or sixty-­eight, but pass a radar gun at seventy and you ­will almost certainly see flashing lights in your rearview mirror (yes, even if you have “Member of the Assembly” license plates). The low seventies might be acceptable, but driving over seventy-­five puts you at risk. What is the “real” speed limit? Is it the fifty-­five and sixty-­five miles per hour enacted by the legislature, or is it the sixty-­seven to sixty-­eight limit or the seventy-­four to seventy-­ five limit that is actually enforced? Although an occasional academic or po­liti­cal reformer rails against the evils of bureaucratic discretion, most students of politics agree that a certain amount of flexibility is not only necessary but desirable. The early twentieth-­century ideal of dispassionate civil servants neutrally enforcing clearly defined laws has been dismissed as unrealistic. Few citizens would be happy with laws—­such as speed limits—­that ­were too rigidly enforced, and in many technical areas the prob­lems are simply too complex to be administered without flexibility. The legislature, for example, can set standards for road construction, but the par­tic­u­lar mix of concrete to be poured in a par­tic­u­lar location ­under varying weather conditions is best left to the ­people more expert in road building than most legislators. Where that road is constructed, however, is another question. While few citizens or their legislative representatives care very much ­whether a road is paved in asphalt or concrete, they tend to care if it is routed through their backyards. If decisions such as ­these are to be made by bureaucrats, we want to ensure that the administrative experts designing the highway are subject to citizen control. Most impor­tant, we want bureaucracies that are at least relatively neutral in their implementation of the law. Our hope is that the police on the thruway neither ­favor nor target the car with the “Member of the Assembly” license plate; the public school does not have teachers’ pets; ­people do not qualify for public ser­vices ­because of whom they know. The law is the law, regardless of wealth, race, religion, or status. How can we give our public servants the flexibility they need without playing favorites? The answer in one sense is that we cannot. No m ­ atter how much we insulate the civil ser­vice from partisan politics, control rulemaking, and shield enforcement from outside influence, administration is never apo­liti­cal. At best, it can be regulated, scrutinized, and sometimes controlled.

Corruption and Red Tape In William Riordan’s delightful evocation of Tammany Hall, the party boss George Washington Plunkitt carefully distinguishes between “honest” and

23 8 C h a pt e r  7

“dishonest” graft. Taking a bribe, Plunkitt argued, would be dishonest but seeing one’s opportunities and taking them is quite another: “Suppos[e] it’s a new bridge t­hey’re g­ oing to build. I get tipped off and I buy as much property as I can that has to be taken for the approaches. I sell at my own price l­ater on and drop some more money in the bank. ­Wouldn’t you? It’s just like lookin’ ahead in Wall Street or in the coffee or cotton market. It’s honest graft and I’m lookin’ for it e­ very day of the year.”24 Americans are more obsessed with official corruption than are the citizens of most other socie­ties. The laws in Albany and Washington are replete with checks on graft, ­whether “honest” or “dishonest” in Plunkitt’s terms. As Plunkitt implies, the kinds of self-­serving maneuvers we applaud in the world of commerce are frowned on in government. ­There are in essence five techniques for limiting corruption: insulation, competitive bidding, audits, disclosures, and constrained discretion. The civil ser­vice was created to insulate the bureaucracy from politics. ­Because they are not dependent on politicians for their jobs, civil servants are theoretically less likely to be pressured by certain individuals, interests, or communities in making decisions. To mitigate delayed payoffs, government employees in New York are not permitted to work for private sector employees in their fields for two years ­after leaving the civil ser­vice. T ­ here is no doubt that reforms largely freed the civil ser­vice from the most overt pressures of po­liti­cal favoritism while also building a variety of auxiliary precautions into the system. Competitive bidding generally requires all major purchases and ser­vice contracts to be advertised in advance and awarded to the lowest bidder. Thus, if an agency is buying new computers, it must solicit bids from at least three companies and buy from the one with the lowest bid. To provide a further check on pos­si­ble corruption, a third set of controls—­ involving audits, disclosures, and other forms of investigation and exposure— also is required in many areas. Most of the larger agencies have their own divisions of financial audit and control that, together with the Office of the New York State Comptroller, regularly audit the books. Government employees are routinely required to disclose aspects of their private lives. Many agencies, for example, require periodic reports listing any sources of outside income; most include annual per­for­mance reviews; and some mandate periodic medical exams and drug tests. Special investigations of vari­ ous agencies and individuals are not uncommon, and of course the press always is interested in stories involving official malfeasance. Even private firms and individuals who work for the state or local agencies are fair game for secret investigations of their finances and aspects of their private lives. In major cases, special prosecutors are hired to investigate prob­lems and bring offenders to trial. Fi­nally, corruption can be controlled by limiting



M a k i n g P u b l i c P o l i c y

239

d­ iscretion with elaborate systems of rules and regulations that prescribe exactly how decisions must be handled. ­These checks have reduced the most blatant forms of corruption in state politics and sharply ­limited their appearance in local government, but the pursuit of integrity comes at a price. While no one has systematically tallied the direct costs of testing civil servants, auditing agencies and contracts, investigating public servants and suppliers, administering drug tests, pro­cessing the forms designed to limit conflicts of interest, and so on, t­ here is no doubt that the costs of

Box 7.1  The Agony of Judicial Choice Cases that actually come to trial are usually difficult ones. If they ­weren’t, they would prob­ably have been resolved by plea bargains or agreements between the litigants. All judges have had cases on which they would have liked to vote “maybe,” or perhaps “guilty but . . .” Decisions are often second-­guessed by the media in ways—­frequently ill-­informed—­that make judges look silly. And the losers in both civil and criminal cases sometimes hold the judge personally responsible. One town justice in the small town of Hillsdale told us she got threatening, late-­night phone calls from a w ­ oman the justice had ruled against years ­earlier in a domestic dispute. Perhaps the worst nightmare of judges is that they ­will make a judgment that ­will come back to haunt them. Death penalty cases frequently involve that kind of risk, and t­ here are many judges who would prefer not to take them. But even a seemingly ­simple case can inspire regret. Years ago an upstate ­family court judge made a routine decision in a custody case. A f­ ather who won custody of his two ­children was having trou­ble caring for them and wanted to turn them over to the ­mother. The m ­ other agreed, and so did the judge. The ­mother had an extensive history of m ­ ental illness, which was well known to the state office of ­mental health, but this information was not available to the judge. Six weeks ­after receiving custody, the w ­ oman drowned the c­ hildren. That decision ­will haunt the judge for a long time. ­There are times, too, when the accumulation of seemingly routine cases “just grinds you down,” as one Brooklyn civil court justice said ­after a day of credit card cases. “The ­people borrowed the money and the law is clear but you just hate to order ­people to change their lifestyles ­because of a stupid ­mistake.”

24 0 C h a pt e r  7

corruption control are substantial. T ­ here are numerous indirect costs as well. If the copy machine breaks down in a government office, you do not simply go to the store and buy another one, as you would in the private sector, nor can you call a temporary agency to replace a key worker who has been ill. The requirements of competitive bidding and merit hiring guiding such acts in government often make it difficult to cope with emergencies of this kind. In many agencies, it can take months to replace the ink supply of a computer printer. According to one study of New York City, a typical contract was reviewed by no less than five additional agencies. Eighty-­one ­percent ­were not registered u ­ ntil a­ fter they w ­ ere supposed to have begun. And it takes so many weeks for most suppliers to be paid that many businesses simply refuse to take o ­ rders from state and local agencies. Not surprisingly, the average number of bids received declined from five in 2003 to three in 2018.25 In New York and prob­ably in state and local governments more generally, t­ here has long been a vicious cycle in which “the perception that greedy, dishonest contractors are poised to exploit any opportunity to defraud the city has led to more monitoring, double-­checks, stringent contract terms, slow payments, and lately the screening of contractors for integrity. In turn, this leads to increased cynicism among contractors who feel that they are being treated like quasi-­criminals, and it provides them with a rationalization for further dubious practices. This in turn is likely to spawn more safeguards and greater suspicion.”26 Civil servants are caught in the same trap. Knowing that they might not be able to replace a piece of equipment when it breaks down, they order a new one in advance. Unable to find a contractor willing to work ­under the conditions specified by law, they rewrite the request for proposals. Lacking authorization to buy a badly needed ink cartridge for the printer, they list it as stationery and conspire with a supplier to submit a phony bill. To combat ­these evasions of the rules, auditors tighten the rules still further. The cycle continues in no small part ­because no government agency wants to be caught in a conflict of interest. In a similar manner, government rules designed to protect the environment, support minority rights, decrease substance abuse, prevent injuries, and guarantee due process—­all laudable goals—­also serve to increase the cost of government, decrease its efficiency, and contribute to more red tape. The growing size and scope of the bureaucracy also complicates prob­lems of control. If ­there are too many rules, the machinery grinds slow; too few, and the possibilities of favoritism, discrimination, and fraud increase. The first line of defense against a runaway bureaucracy, however, remains statutory law. The clearer the law, the less discretion it gives. Second in importance is transparency. According to the Washington Post’s masthead, “democracy dies in darkness.” So does accountability. Ultimately, however, effective controls are institutional.



M a k i n g P u b l i c P o l i c y

241

The Politics of Administration When most citizens come into contact with the government, it is with someone working for an administrative agency. Social workers, motor vehicle department clerks, police officers, park rangers, highway workers, building inspectors, tax collectors, teachers, and librarians are the ­people who actually do the work of government. All of t­ hese p­ eople, with the exception of the numerous employees of public authorities and other in­de­pen­dent agencies, are or­ga­nized in a multilevel hierarchy with the governor at the top. In an ideal bureaucracy, ­orders flow down from the second floor, and information flows up, according to Weber. For a number of reasons, this pro­cess seldom happens. The New York Constitution grants executive power to the governor, but even the constitution hedges the meaning of this power by enshrining a neutral civil ser­vice that permits the legislature to define the structure and bud­get of each agency and subjects most departments to scrutiny by the comptroller and attorney general. More impor­tant, despite the civil ser­vice, agency employees work in complicated networks of power and politics. All too often, studies of public administration—­both journalistic and academic—­are flawed by a lack of concern about politics. During the era of subcommittee government in Washington, ­there w ­ ere agencies so well protected po­liti­cally as to work virtually in­de­pen­dent of the president. Characterized by their interrelated relationships, t­hese “iron triangles” of specialized bureaucrats, interest groups, and the relevant subcommittees of Congress w ­ ere to a certain degree in­de­pen­dent fiefdoms. T ­ hese subsystems are less rigid than they once ­were at the national level and have never been significant in New York, where the centralization of legislative and executive powers has undermined attempts to construct the kinds of issue networks that led to the development of iron triangles. At the national level, party discipline and polarization have diminished the policy-­shaping and oversight roles of legislative committees. Laws t­oday are drafted (often poorly) in the offices of party leaders by staff persons who lack substantive expertise and are so vague that they increase bureaucratic discretion. In New York, the parties’ program staffs provide some skills, but with laws increasingly crammed into the bud­get, the governor and his staff have ever-­stronger weapons for micromanaging agency decisions. The relative weakness of the committee system in the legislature vis-­à-­vis the party leadership makes it more difficult to provide expert control over the lower levels of the bureaucracy, a key component of iron triangle theory. Even in states with strong committees, “this oversight function is challenging to perform b­ ecause most state legislatures are part time and proper oversight is a time-­consuming and staff-­intensive exercise. Given that legislators see lawmaking and casework as their primary functions, t­ here is not much

24 2 C h a pt e r  7

incentive to engage in serious oversight. And it is a time-­consuming undertaking that, absent public scandal, offers ­little po­liti­cal reward for ­those who engage in it.”27 As at the state level, the power of the governor to run roughshod over the administrative pro­cess is growing. Administrative structures created in the bud­ get are at best loosely defined and subject to gubernatorial control. Many of New York’s economic development initiatives, such as the Buffalo Billion, are exempt from audits by the comptroller, largely f­ree of statutory restrictions, and report directly to the governor rather than to an established government agency. New York’s most recent governors have effectively bypassed the legislature and public scrutiny by packing their policy proposals into the bud­get, where the legislature’s power to amend is sharply l­imited, with negotiations taking place largely in back rooms. The interest group community is often a “sympathetic player in ­these efforts.”28 Unlike the old subgovernments, agency directors often lack the technical experience and expertise of the bureaucrats, subcommittee members, and staff who dominated the old iron triangles. Rather, it is the lobbyists who are t­ here to fill in the details as the executive o ­ rders are drafted. T ­ oday’s departments and agencies that serve as policy incubators are largely f­ree from legislative scrutiny and the kind of public attention that often came with it. In 2020 in New York, for example, the legislature and the public learned months ­later that the administration had undercounted the number of COVID-19 deaths in nursing homes by nearly 50 ­percent. The historically strong control of this large bureaucracy by New York governors is constrained by a variety of statutes and court decisions, and many New York agencies are controlled by a network of interstate, regional, and statewide authorities. Although run by gubernatorial appointees, they are in­de­pen­dent of the governor’s direct control. “Other key functions, directed by statewide elected officials, may be understood as having purposefully been made in­de­pen­dent of the governor to provide oversight and accountability.”29 The attorney general and comptroller are sometimes rivals for power. More than most states, moreover, New York delegates an unusually large proportion of its administrative apparatus to local governments. Elementary and secondary education are the most costly and arguably most impor­tant state functions. In New York, education is governed at the local level and statewide by a Board of Regents appointed by the legislature. Fi­nally, while governors may appoint some of the commissioners (with Senate approval) to impor­tant bodies such as the Public Ser­vice Commission—­which sets utility rates—­these appointments are subject to statutes that require commissioners to come from dif­fer­ent parties. All this contrib-



M a k i n g P u b l i c P o l i c y

243

utes to what Paul Light labeled the “thickening” of government, in which the number of executive positions has grown. As in Washington, the number of se­ nior executive–­level roles in New York—­commissioners, secretaries, deputy secretaries, chiefs of staff to secretaries, undersecretaries, associate and assistant commissioners, principal deputy assistant secretaries, office directors, chief counsels, assistant and deputy chief counsels, division directors, deputy directors, deputy assistant division directors—­continues to grow.30 In the final analy­ sis, ­there is no way that a single executive truly can control a leviathan of this size and density. It does not keep governors from trying, however.

The ­Legal Pro­cess Structurally, as noted in chapter 5, the court system in New York is as complicated as that of any two other states combined. Differences between New York City and the rest of the state, beginning with trial courts and the vari­ous appellate courts, along with the bewildering complexity of specialized benches—­ surrogate courts, f­amily courts, traffic courts, and so on—­make it almost impossible to chart a typical case. Most ­legal issues in New York nonetheless tend to follow one of two paths. Civil cases involving disputes between private parties enter the pro­cess through civil courts of general jurisdiction and specialized courts. Criminal cases in which the government is the prosecutor enter through a trial court system with a separate set of rules and procedures. In civil and criminal courts, the rules of the game evolved from a mix of common law, statutory law (which includes agency-­drafted regulations), and a rather vague concept known as equity. New York’s courts, like ­those of all but one other state, have their roots in the common-­law tradition of ­England and the princi­ple of stare decisis (Latin for “let the decision stand”).31 Some ­legal rules in New York can still be traced to a decision reached centuries ago in an En­glish court, but New York has long tended ­toward a more rigid system of legislated rules and executive decrees. Lacking access to the large case law libraries needed to sustain a common-­law system, and confronted with cases unique to a new environment, New York and the other colonies began developing their own common-­law tradition and writing their laws into statutory codes. Without access to printed rec­ords, “case law—­court decisions—­ did not easily pass from colony to colony. . . . ​To borrow statutes (even w ­ hole codes) was easier to do.”32 As early as 1664, the Duke’s Laws—­copied largely from existing codes ­adopted in Mas­sa­chu­setts and ­Virginia—­were ­adopted as the prevailing rules in New York, Delaware, and Pennsylvania. Modified by

24 4 C h a pt e r  7

state constitutions, legislative statutes, and the rulings of administrative agencies, the corpus of statutory law largely supplanted the British common-­law tradition in governing the operations of the courts.33 Just as the US Congress publishes updated federal laws known as the United States Code, the collected statutes of New York State appear in McKinney’s Con­ solidated Laws of New York and McKinney’s Session Laws of New York, which provides annual updates. The many volumes of McKinney’s—­organized by topics such as “Real Property,” “Assault,” and “Evidence”—­have become the guiding text for ­lawyers and judges in New York. Section 2, line 675 of the New York penal code enacted in 1881 provided that “no act . . . ​­shall be deemed criminal or punishable, except as prescribed or authorized by this Code, or by some statute of this state”—­language that would seemingly eliminate precedent-­based law. But statutory law, like the common law, evolves through judicial interpretation. It is illegal ­under the code to tap your neighbor’s phone wire, but does that make it illegal to listen in on his smartphone? The zoning laws permit a town to prohibit the construction of outbuildings. Does that mean that you cannot have a bird­house on your property? Well, just how big a bird­house are we talking about? McKinney’s does not cover that question, but case law does. Civil even more than criminal law continues to give considerable latitude to judges in cases such as t­ hese. Occasionally, judges are faced with cases they cannot decide fairly by application of any statute or pre­ce­dent. ­Family courts in par­tic­u­lar run into cases in which the punishment of one party or the other would only make t­ hings worse. In such cases, judges sometimes apply their equity power, a right to decide according to princi­ples of fairness. One judge’s vision of fairness, of course, may not be another’s, just as one judge’s citing of pre­ce­dent or the controlling statute may not agree with another’s. It is in cases such as t­ hese that the appellate courts come into play, and their decisions in turn become part of the common-­law tradition that ­will guide ­lawyers and judges in ­future cases.

Criminal and Civil Procedure ­ here are four ways a case comes to a court. To best understand how the sysT tem works, one can visit as a tourist or alternatively serve jury duty. Using voter registration lists, utility bills, and tax rolls, persons eligible for jury duty are chosen randomly by court clerks or jury commissioners to appear in the appropriate court­house for anywhere from a few days to as long as it takes to conduct a trial. A far less pleasant way to get to court is to be arrested. Fi­nally another way to appear in court is as ­either the plaintiff or the defendant in some kind of civil suit.



M a k i n g P u b l i c P o l i c y

245

Criminal Cases A criminal case usually begins with an arrest, at which time the accused must be informed of his or her basic rights. ­These include the right to remain ­silent, to consult with a l­awyer, and to have a ­lawyer provided if the individual cannot afford one. The police cannot keep a person in custody without g­ oing before a judge to determine w ­ hether or not ­there is probable cause to believe that a crime has been committed. If the answer is no, the case is dismissed. If the answer is yes, the defendant ­will be indicted and scheduled to appear again. Usually, the defendant ­will be released on bail with a deposit of money that must be forfeited if one fails to appear. A first offender with a stable home and job ­will often be released on his or her own “recognizance”—­a promise to show up at the appointed time. A repeat offender with a high probability of leaving town may be given high bail or denied bail entirely. This system manifestly discriminates against the poor who, if they do not have the typical thousand dollars or more to put up in cash or to buy bail insurance, ­will be held in jail ­until a trial is scheduled, which in New York can take anywhere from a few weeks to more than a year. A new law passed in 2019 eliminated bail for a number of nonviolent crimes. In its first year, the number of persons in pretrial detention jail in New York City declined by 40 ­percent, with even larger reductions upstate.34 The law remains controversial; however, data from the Vera Institute show less than 3 ­percent of ­those released have failed to show up for trial.35 Once the accused appears for trial, responsibility for prosecution shifts from the police to the office of the district attorney, who decides what charges to bring. The defendant is then brought back into court for arraignment and asked to plead ­either guilty, not guilty, or not guilty by reason of insanity. An admission of guilt at this point is equal to a conviction and constitutes a waiver of one’s right to a trial, and the judge imposes a sentence. Most criminal cases end at this point or through a pro­cess known as plea bargaining, which allows the accused to avoid trial by pleading guilty to a lesser offense. Imagine A has had a few too many drinks at a wedding reception and is ­stopped by the police for driving while intoxicated (DWI). In New York, intoxication is defined largely by a blood test in which an alcohol level higher than .08 constitutes DWI and can result in a prison term, a fine, and the loss of one’s driving license. Driving while alcohol impaired (DWAI)—­showing a level between .005 to .08—is less serious, punishable by a fine and perhaps mandatory counseling. ­Unless A was in an accident or far above the .01 level, he ­will usually be allowed to “cop a plea.” That is, A’s attorney w ­ ill reach an agreement with the district attorney (DA) that her client ­will plead guilty to the offense of DWAI in exchange for dropping the DWI

24 6 C h a pt e r  7

Box 7.2  Bail Reform On June 6, 2015, twenty-­two-­year-­old Kalief Browder committed suicide two years a­ fter his release from Riker’s Island, a criminal detention center in New York City. From 2010 to 2013, Browder—an African American man from the Bronx—­languished on Riker’s Island for allegedly stealing a backpack in the Bronx, a charge that was never proven. Bail was set at $3,000; however, he was unable to raise the money and was forced to await trial at one of the nation’s most notorious correctional fa­cil­i­ty despite repeated claims that he felt unsafe, was experiencing severe depression, and was contemplating suicide. Browder’s death sparked outrage and protest throughout New York. Scholarly evidence showed the bail system was racially and eco­nom­ically biased, and legislative leaders sought to reform pretrial procedures. One reform included a “no cash bail” provision in cases involving nonviolent offenders such as Kalief Browder. While a bail reform bill passed the Assembly on multiple occasions, it failed to pass the Republican-­controlled Senate. Not ­until 2019, when Demo­crats assumed control of the Senate did the bill pass, and no cash bail became law in New York, with significant support from numerous advocates such as the Vera Institute of Justice.36 New York City, incidentally, settled a civil lawsuit with the Browder ­family totaling $3.3 million. In 2020, a backlash against bail reform surfaced when conservative media, police, and ­others in the state’s criminal justice system argued that the law went too far, letting dangerous defendants back onto the streets. Republicans and district attorneys throughout the state waged a vocal campaign to revise provisions of the bail reform law. Citing a case in which a defendant robbed a bank four hours ­after being released from custody, for example, opponents of bail reform maintained that the provisions of the 2019 law ­were too sweeping, suggesting judges o ­ ught to be given more discretion in setting bail for offenders. The bail reform ­battle continues to be contentious, demonstrating that policy contests can sow division within parties as well as across party lines. Further reform continues to be pursued among members of the Demo­cratic Party—­notably, New York City’s second African American mayor, Eric Adams; legislative leaders; and ­those vying to become the gubernatorial nominees of the party in 2022.37



M a k i n g P u b l i c P o l i c y

247

charge. If the judge agrees, a fine is paid, A avoids jail, the DA gets a conviction, and the state is saved the costs of a trial. When the defendant and prosecutor are unable to reach agreement or the defendant pleads not guilty, it is up to the judge—or in the case of serious crimes, a ­g rand jury—to decide ­whether or not to bring the case to trial. As much as it saves time and money, plea bargaining is controversial. Conservatives often argue that it allows too many dangerous felons to avoid significant punishment. Civil libertarians argue that the real effect often inflates charges, encouraging DAs to seek stiffer penalties than the facts might justify. Ideology aside, plea bargaining has become an essential part of the pro­cess. The statutes that provide uniformity and equal justice cannot distinguish individual cases as the pro­cess of plea bargaining often does. In many jurisdictions—­smaller ones in particular—­plea bargaining takes place between prosecutors, defense attorneys, and judges who have dealt with one another frequently in disposing of similar cases. A sort of common law of pleas develops in which the outcomes of similar cases in the past set the standards for what is happening now. In some jurisdictions, prosecutors, judges, and defense attorneys have worked with one another for so long that they seem more in cahoots than adversarial. One author describes the criminal court system as a bureaucracy, and “the practice of law as a confidence game.”38 While this may be too strong a term to apply to most major cases, the operations of most criminal courts are more bureaucratic than judicial. Traffic courts, which account for about half of the cases brought in most jurisdictions, seldom do more than affirm the recommendations of the arresting officer and have earned the label “cafeteria courts” for their ability to pro­cess their patrons quickly to the cash register. Many trial courts operate in much the same way. It is their business, as Harry Stumpf and John Culver write, “to pro­cess large numbers of cases quickly and with an ele­ment of bureaucratic efficiency. . . . ​ Much of the work occurs in private—­meetings between opposing counsel, conferences with the judges in chambers, and so on.”39 In civil court cases, the poor in New York rarely obtain adequate l­egal assistance, a situation that has improved in specialized courts. Even in the area of criminal justice, however, public defenders, ­Legal Aid Society ­lawyers, and ­others ­doing pro bono (­free) work tend to carry extraordinarily high caseloads. Tales of defense l­awyers meeting a client, reviewing the case, and being rushed into court ­every fifteen minutes are commonplace. If the defendant does not “cop a plea,” the prosecutor refuses to accept it, or the judge voids an agreement between the prosecution and the defense, the case goes to trial. U ­ nder our adversarial system of justice, at this stage it is up to both sides to make their best case, advancing what­ever evidence supports their side. They can

24 8 C h a pt e r  7

bring in expert witnesses, introduce physical evidence, and coerce testimony through the issuance of subpoenas for persons unwilling to come forth on their own. ­Because the state has the resources of the police on its side, the defense is given certain accommodating advantages. For example, the state may not introduce a defendant’s prior arrest rec­ords into evidence, compel the defendant to testify, or resort to evidence gained by illegal means (such as coerced confessions). ­Every person charged with a felony in New York has the right to a trial by jury, although that right is often waived by the defendant in ­favor of a trial before a judge, known as a bench trial. Jury t­ rials begin with the se­lection of twelve citizens. Each attorney can ask the presiding judge to dismiss an unlimited number of jurors for “cause” b­ ecause a citizen is obviously prejudiced and to dismiss a ­limited number without specific reason. Both ­lawyers then pre­sent outlines of their cases. Typically, the prosecution begins its case with testimony from the arresting and investigating police officers. Experienced witnesses, the police seldom surprise e­ ither the prosecution or the defense, and they are seldom tripped up on cross-­examination. Yet ­there is frequently an extended session of technical sparring as the prosecution tries to show both that the evidence is compelling and that it was properly obtained. Conversely, if the defense shows the police ignored impor­tant procedural safeguards for the accused, it may lay the groundwork for a ­future appeal that makes this stage of the trial an impor­tant one. When other witnesses take the stand, predictability declines. “Ordinary ­people,” as Jacobs observes, “feel ­g reat stress on the witness stand, may respond in quirky ways to cross examination and may display mannerisms that belie their testimony.”40 Highly publicized and emotionally volatile cases, especially ­those involving celebrities such as Taylor Swift or George Floyd, leave many observers with serious doubts about the ability of juries to weigh the facts. The public often rely on sometimes sensationalized media reports that are not subject to the ­legal rules of evidence and do not see the same case as the jury. Data comparing more than 7,500 criminal and civil jury t­ rials with verdicts that trial judges would have rendered show that the judge and jury agreed three-­quarters of the time and disagreed in their reading of the evidence in some other cases, but in only 9 ­percent of cases did the judges believe the jurors erred substantially in their l­ egal reasoning.41 Subsequent research has produced similar findings, with judges and juries in agreement in 73–78 ­percent of criminal cases and 63–78 ­percent of civil cases. In contrast with public perceptions focused on sensational cases of p­ eople winning millions of dollars for seemingly trivial injuries, neither plaintiffs nor defendants ­were significantly more likely to win in bench t­ rials as opposed to jury ­trials. In criminal cases, however, juries are considerably more likely to be lenient than judges.42



M a k i n g P u b l i c P o l i c y

249

Once the judge or jury has de­cided the question of guilt, judges impose prison sentences of more than a year in almost one-­third of cases resulting in conviction and of less than a year in a similar proportion of cases. The remaining defendants ­were sentenced to time served (­because they could not raise bail), placed on probation, given suspended sentences, fined, or required to perform community ser­vice.43 ­Until the 2019 bail reforms, data illustrated higher conviction rates and longer jail terms, yet New York ranked forty-­fourth among states in the proportion of its citizens serving time. Diminished crime rates throughout the state—­and most dramatically in New York City—­have reduced the number of prisoners in New York State from a peak of more than 100,000 in the 1990s to just over 20,000 in 2016 and less than 13,000 in 2020.44

Civil Cases Civil cases arise from the failure of participants to resolve disputes. The plaintiffs in civil cases usually are asking the court to compel other parties to give them something to which they believe they are legally entitled, such as money, a divorce, bankruptcy, damages, custody of ­children, maintenance of an apartment, or an inheritance. Law schools tend to divide civil practice into four main areas: torts, which consist of disputes about alleged injuries; contracts, involving disagreements about the meaning of previous agreements; property; and domestic relations. In New York State, as many as three million cases are pending in civil courts, with f­amily court cases involving such diverse issues as foster care, custody, adoption, chronic delinquency, and spousal abuse leading the way and disputes between landlords and tenants close b­ ehind. ­There are hundreds of l­awyers for credit card companies throughout the state who make their living suing delinquent card holders. What­ever the category, civil cases arise when p­ eople have grievances that they feel have been unjustly afflicted on them by another party. Not all grievances become cases. For example, if you fall down your own front steps you may be injured, but ­unless the steps w ­ ere improperly installed, you have no one to blame but yourself. If you fall down the stairs of a ­hotel, however, you may have a case. The United States generally is considered the most litigious society in the world, a reputation that is not entirely deserved. Although Japan boasts a dramatically lower rate of litigation than the United States, other countries—­ including Australia, Denmark, ­England, and Israel—­are comparable. Among the US states, New York is a leader. New Yorkers who fall down h ­ otel stairs are less likely to blame themselves and more likely to call a l­awyer. In tort cases such as ­these, l­awyers are likely to work for contingency fees with payments due once a settlement is reached with the ­hotel. In ­these instances, l­awyers may pocket up

25 0 C h a pt e r  7

to one-­third of the total award. In many other civil actions, and for the ­hotel, the cost of hiring a ­lawyer provides a strong incentive to ­settle out of court. In its pretrial phase, a civil case typically goes through four steps a­ fter a complaint is filed. A case begins with a pleading filed based on a complaint that explains the basis of the suit, the law being invoked, and the damages or other relief being sought. If a defendant fails to reply, the court may order a default judgment, in which the plaintiff automatically wins. In the discovery phase, each side is entitled—by subpoena if necessary—to all relevant information bearing on the case. Although such requests are generally quite l­imited, the discovery phase can be long, expensive, and embarrassing. Some clients are so reluctant to disclose certain facts that they s­ ettle rather than go to discovery. A philandering husband, for example, may prefer paying alimony to having his wife’s divorce attorneys interviewing ­every ­woman he knows. During and following discovery, attorneys for both sides may file motions seeking further information, expanding the charges, or asking for summary judgment. Frequently, a series of motions from both parties suggests the way ­toward resolution of a case. Approximately one-­quarter of all civil cases are settled by the judge at this point in the pro­cess. Even when cases come to trial. it is not uncommon for the case to be settled in the judge’s chambers before all the witnesses are heard. Many civil cases come to trial simply b­ ecause the parties have become so antagonistic ­toward one another that only a trial can force them to agreement. This is all too often true in divorce cases, in which it is sometimes said that the only winners are the ­lawyers. In the 1970s, New York took a series of steps in its matrimonial laws to ease this pro­cess and consequently reduce the number of cases coming to ­actual trial. No-­fault divorce laws, allowing c­ ouples to simply agree to separate, have increased the ­actual number of divorces and decreased the proportion of such cases coming to trial. No-­fault divorce laws show that ­there is a connection between statutory law and the incidence of litigation. When “no-­fault” auto insurance was implemented, caseloads declined even further, averaging 225,000 a year in New York City. However, the court’s 2019 report shows that “recent insurance regulations involving prompt payment for doctors in no-­fault cases, as well as a large increase in consumer credit cases, has dramatically increased filings . . . ​averaging about 600,000 filings since 2006. Our combined filings presently represent about 25 ­percent of all of the New York State Court system’s total filings (including criminal, f­amily, traffic and civil). Despite vari­ous attempts to make it easier to s­ ettle disputes without g­ oing to court however, litigation continues to rise.”45 A variety of reforms have been proposed to reduce the workload of the courts and bring greater logic to their organ­ization. In the area of criminal justice, for example, the Rocke­fel­ler drug laws—­which mandate up to life impris-



M a k i n g P u b l i c P o l i c y

251

onment for dealers—­put an enormous burden on the criminal justice system and have not effectively controlled the drug trade. The creation of special drug courts emphasizing treatment rather than punishment has eased the burden somewhat, as have the state’s gradual steps to legalize marijuana.

The Appellate Pro­cess Losers in trial courts sometimes have the option of appeal. To achieve what judges call “standing” at the appellate level, the loser in a criminal or civil case must show that ­there has been some error of law or procedure in the preceding ­legal pro­cess. A good deal of l­egal sparring one observes in a court case has its origins in the attempts of one attorney or the other to score sufficient points to ­later appeal the decision in the case. Less than 10 ­percent of state trial court cases are appealed, and most appeals are rejected, but good ­lawyers have it in their minds throughout the pro­cess what points they might l­ater appeal. It is this long view of appellate proceedings that gives the appellate division its l­egal clout. Through its interpretation of the rules, the appellate division is the real arbiter of what the laws mean. The seven-­member Court of Appeals is New York’s highest court and has the final word in this pro­cess u ­ nless t­ here is conflict with a federal standard. ­There are ­whole categories of cases—­particularly in the area of civil law—in which the rulings of the Court of Appeals are final. Generally, the rulings of the Court of Appeals are grounded in interpretations of statutes, though it does have the power of judicial review to rule a statute unconstitutional. The Court of Appeals seldom does so. In fact, constitutional issues are raised in less than one case in five. The appellate pro­cess begins with attorneys for the losers filing briefs explaining why their cases ­were improperly de­cided. Most of ­these motions are denied, and the decisions of the trial courts stand. The number of cases reaching the Court of Appeals is very small, particularly in the area of criminal law. In recent years, the Court of Appeals has rather steadily reduced its caseload. From 2010 to 2016, it heard an average of 234 appeals a year; from 2017 to 2019, just 128; and in 2020, during the pandemic, only 115.46 The Court of Appeals hears cases in which the lower appellate division courts have disagreed, or when ­there has been a significant modification of the original opinion. While t­hese cases often raise impor­tant issues, most judges and l­egal scholars would prob­ably agree with Chief Judge Stanley Fuld’s 1967 analy­sis stating that “innumerable appeals are brought to the Court as a ­matter of right, at the option of the litigants, not b­ ecause they are of any moment or merit but merely b­ ecause ­there has been some disagreement, no

25 2 C h a pt e r  7

­ atter how trivial, e­ ither between the Appellate Division and the lower court, m or within the Appellate Division itself, as to the proper final disposition of the case.”47 Other cases are heard only by permission and tend to involve significant l­egal or constitutional issues. Unlike the US Supreme Court, the New York Court of Appeals can issue advisory opinions and need not have an a­ ctual “case or controversy” before it to hear a case. The Court of Appeals, moreover, has its appellate jurisdiction firmly established in the constitution, and the legislature cannot change it by statute. Although the Court of Appeals has exercised a degree of self-­restraint in taking on the other branches of government, it is considerably less constrained in its formal jurisdiction than the US Supreme Court. In the Court of Appeals, motions for appeal are randomly assigned to each of the seven judges for preliminary screening. ­After examining the papers filed by opposing attorneys and amicus curiae (Latin for “friend of the court”) briefs filed by other interested parties, the judge in question summarizes the case and makes a recommendation. Based on tradition, the court grants a hearing if two judges agree that the case should be reviewed. New York’s highest court is a very collegial body. It meets each morning in the library to consider each justice’s memoranda on assigned cases. T ­ hese discussions are frank, learned, and sometimes heated, and sometimes they actually change minds. ­After a short lunch, the court convenes in its chambers at 2 p.m. to hear oral arguments on cases already granted review. A ­ fter another session in the library, the judges traditionally dine together downtown before ­going back to chambers to prepare the next morning’s memoranda. The public face of the court is aptly revealed during oral argument. The New York Court of Appeals is what is known as a “hot bench,” meaning that the judges play an active role in questioning and sometimes commenting on the arguments of counsel. Each attorney is given fifteen minutes (thirty minutes in some cases) to defend their written briefs. For all but the most hardened veterans, it is an intimidating experience as it soon becomes clear that the justices have done their homework and are quick to find and explore the weakest points. As the short period allocated to oral argument indicates, the bulk of the court’s work in appellate cases comes from the careful reading and comparison of opposing written briefs, but most judges ­will concede ­there have been cases in which something said during oral argument has changed the direction of their thinking about a case. Although ­there may be some tendency for a hot bench to f­ avor skilled advocacy over substantive arguments, it also provides rare public insights into a judicial pro­cess that too often takes place entirely b­ ehind closed doors.48



M a k i n g P u b l i c P o l i c y

253

The Least Dangerous Branch? ­ fter oral arguments, the judges return to the conference room—­sometimes A called the “tea room”—­where they draw from a deck of index cards to decide who w ­ ill be assigned what case. In conference, discussion begins with the reporting judge who pre­sents the case. The ­others comment in order of reverse se­niority, and a preliminary vote is taken. “Cases are primarily de­cided in conference, but the decisions are not finalized u ­ ntil draft opinions have circulated. Typically, if the reporting judge holds the majority, he or she w ­ ill write for the court. Other­wise the ju­nior judge in the majority ­will write the main opinion. If a dissent must be written, usually the first one to raise an objection—­frequently a more ju­nior jurist, ­because the case is conferenced in reverse order of seniority—­gets the chore.”49 Although it is rare for a judge to switch votes on the basis of the written opinions, the case is not fi­nally de­cided u ­ ntil both the majority and minority opinions have been studied by all the judges. In a long and firm tradition, the votes of the judges in conference, the probable outcomes of cases being argued, and the nature of the arguments within the Court of Appeals have never been leaked. Not ­until the final vote is taken and opinions are printed ­will the litigants or the public know who won or lost. Close votes of four to three are uncommon; however, only a ­simple majority is needed to win. What was a largely consensual court became more divided particularly in the area of criminal justice when the judges appointed by George Pataki voted in ­favor of the defendant only 23 ­percent of the time. Whereas 91 ­percent of the cases de­ cided in 1998 w ­ ere unan­i­mous, the proportion declined to 84 ­percent in 2007, but ­rose again ­after Andrew Cuomo filled ­every seat on the court.50 Some decisions of the Court of Appeals, if they involve substantial federal questions, can be taken for further review at the national level. Most cannot. It is pos­si­ble for the legislature and the governor to enact a law that effectively overrules a decision of the court. Yet this also is a rare occurrence. And ­there are times when the decisions of the Court of Appeals are not fully enforced: when the police violate rules of procedure established for criminal cases; when the governor and legislature fail to provide sufficient funding to carry out a court order; or when lower courts gradually reinterpret the ruling of the Court of Appeals in applying it to new cases. The primary role of the courts remains that of resolving disputes and deciding individual cases, but the courts are very much a part of the policymaking pro­cess in New York. As impor­tant as this role is, the courts in the US states ­will generally remain—as Alexander Hamilton described the Supreme Court of the United States—­the “least dangerous branch,” in large part b­ ecause they play at best a tangential role in directing the flow of economic resources.

C h a p te r   8

Taxing, Spending, and Public Policy Priorities

Former New York City Mayor Ed Koch once conceded that his eyes glazed over when he had to read a bud­get. Yet Koch prob­ ably recognized—as do most po­liti­cal leaders—­that reading a properly assembled bud­get is as close as one can get to understanding who the government expects to pay for what. The ability to read and make sense of what is recorded in the bud­get, however, is another question. In part, the reason is that questions of who gets what and who pays for it are not as ­simple as they sound. Bud­gets are projections that, no ­matter how carefully they are constructed, may be completely overwhelmed by events. No one could possibly have predicted when Governor Cuomo presented his 2020 bud­get to the legislature in January that, by summer, the state’s unemployment rate would exceed 15 ­percent and that tax revenues would decline by more than 5 ­percent. Fi­nally, bud­gets can be misleading ­because ­those who make them often have motives to deceive. Recent New York State bud­gets have run to more than a thousand pages of densely packed words and numbers, obfuscating both winners and losers.

The Bud­getary Pro­cess At the center of the bud­getary pro­cess is the Division of the Bud­get. Its director and half a dozen top employees serve at the plea­sure of the governor. 25 4



Ta x i n g , Sp e n d i n g , a n d P u b l i c  P o l i c y  P r i o r i t i e s

255

­ lthough the DOB’s leadership has become increasingly politicized, the workA ing units of the division are composed largely of civil servants who take pride in po­liti­cal neutrality. The DOB is or­ga­nized by units to which vari­ous clusters of agencies are assigned. The Health and Social Development unit, for example, is responsible for the Departments of Social Ser­vices, Health, and ­Labor; Division for Youth; Office for the Aging; Council on C ­ hildren and Families; and Division of ­Human Rights. Each of ­these units monitors its respective agencies both in terms of program evaluation and bud­get development. The units’ annual reviews of agency requests provide a basis for the developing the bud­get presented by the governor. The state’s fiscal year begins on April 1 and ends on March 31. However, the ­actual pro­cess of budgeting—­the time between early bud­get preparations and final disbursements—­begins nine months e­ arlier and ends up to twenty-­ seven months l­ater when the state comptroller pays the last bills. Preparation of the executive bud­get typically begins in June, when each agency begins to compile its annual estimates for the following year. T ­ hese requests are reviewed by bud­get analysts who look for major changes, indications of padding, inaccuracies, and consistency with the programs of the governor. Meanwhile the fiscal planning division of the DOB begins “in consultation with the governor” to develop estimates of revenues and expenditures. When ­these numbers are returned to the bud­get units, they are translated into preliminary projections for the next fiscal year’s spending levels. Each unit then distributes its agency’s bud­get guidelines in the form of a “call letter,” requesting agencies to submit bud­get and program proposals to conform with the projected fiscal estimates and the governor’s program priorities. The bud­getary pro­cess works through a long chain of increasingly broad checks. It begins with the projections and plans of hundreds of state offices, departments, divisions, and agencies. We explore the pro­cess from the bottom up, using a case from the State University of New York in which Columbia-­Greene Community College created a construction management program. What does it cost to offer a half dozen courses a semester to approximately twenty students a semester? The most expensive item is the hundred thousand dollars plus for the combined salaries and fringe benefits of full-­and part-­time faculty members who teach the courses. Some faculty teach one or more of their courses in other departments, and ­others have part-­time administrative responsibilities. The students, moreover, take courses across an array of departments. When it comes to ­things such as construction materials, proj­ect plans, internet, telephones, and secretarial assistance, the department’s needs are essentially folded into the college’s overall bud­get, ­unless the department needs unique materials such as lumber. For indirect ser­vices, including campus security, advising, electricians, and

25 6 C h a pt e r  8

librarians, the college administration allocates funds. In some systems of bud­ geting, the department would be charged its “share” for some of t­ hese college-­ wide ser­vices, and in o ­ thers they would appear as general overhead. Before your eyes glaze over, t­here is no right or wrong way to make t­hese allocations. The program does not actually pay its faculty or pay for the heat—­the payroll and finance offices do—­and aside from extraordinary items it does not have its own bud­get. ­Because many of its courses involve hands-on work, courses in construction management are less “efficient” than courses in history or mathe­ matics, in which large lectures are the norm. Details such as t­hese rarely enter directly into the college’s bud­get calculations, though they can become f­ actors in periodic program reviews. According to one observer, no one in the governor’s office has any idea how the building program spends its money. “Bud­get data,” in this sense, “are like a fog bank. The current system provides a tier of numbers, far removed from the ­actual figures.”1 What the SUNY system does (real­ity is a bit more complex) is to allocate each community college in the system a certain amount of state aid per full-­ time student based on overall enrollments, calculated in bud­get jargon as full-­ time equivalents (FTEs). (Each FTE consists of one student taking a full-­time program of fifteen credits or five students taking three credits each.) E ­ very other bud­get line, “from deans to desktops and part-­time teachers,” is some proportion of this number, which is at best a crude but crucial indicator of how community colleges compare with one another. The state share of college cost—­known as base aid—­increases or decreases compared with other state agencies or with base aid the year before, and it at least gives an understandable indicator of government priorities. For community colleges, base aid is only one of a multifaceted combination of revenue streams. Even as the DOB’s bud­get examiners are working with SUNY on next year’s numbers, each college negotiates with its county government counter­parts regarding what their share of the college’s revenue stream ­will be. The college’s administrators and trustees decide how much tuition they ­will need to charge to meet their bud­get needs. Although the three-­way share of funds—­state aid, county contributions, and tuition—­form the bulk of the college’s operating bud­get, ­there are still other government funds that are not included. More than half of the tuition received by the college comes not from students and their families but rather from the state’s Tuition Assistance Program (found in another part of the state bud­get) and federal government funds from Pell Grants and work-­study. Fi­nally, the college has a capital bud­get covering expenditures for items expected to be used over the long term, including whiteboards, air conditioners, new buildings, and computers.



Ta x i n g , Sp e n d i n g , a n d P u b l i c  P o l i c y  P r i o r i t i e s

257

When t­hese numbers are sent to SUNY’s central office in Albany, it has a rough set of indicators showing how much is being spent to educate how many students. Beyond that, bud­get numbers alone tell bureaucrats l­ittle. This is true not just for Columbia-­Greene College but for almost ­every bureau and commission in the state. Bud­gets illustrate how many correction agents oversee how many inmates at the Green Haven penitentiary but not how many inmates are in Cell Block E or what they are ­doing. We can count the number of patients treated in the emergency room of a hospital and compare it with the amount spent on doctors and nurses, but the result provides only a rough estimate of how efficiently the hospital is run. What bean c­ ounters in Albany can do is compare Columbia-­Greene’s numbers with ­those of comparable community colleges and with what the college did last year as opposed to this year. Having undertaken a similar pro­cess, each college in the SUNY system now submits its requests to SUNY’s central office, which compares them to one another and evaluates them in the context of the state’s overall fiscal condition. In fiscally strained years, bud­get requests might be returned to the college with suggestions for f­ uture cuts, or individual colleges might be asked to justify par­ tic­ul­ar numbers. Occasionally a college’s wish list is rolled into SUNY’s overall proposal to the governor. Pulling all ­these streams of information together, the SUNY Board then prepares its overall bud­get request. Once each agency submits its plan to the DOB, bud­get examiners meet informally with the fiscal officers and top officials of each agency to hear requests for changes. In November, each department is given a formal hearing, with a last chance to make their case to the commissioners, leaders, and staff of the two legislative fiscal committees. What the commissioners attempt to argue in t­ hese sessions is that their programs are being unfairly underfunded in comparison with other departments or that ­there is some unique set of circumstances that justifies special consideration. ­Whether this occurs in formal hearings or informal discussions with bud­get examiners, a case is made in the context of the resources available in the governor’s overall fiscal plan. During years when expected revenue is high, it may be pos­si­ble to include new programs, providing a case can be made that they are needed, realistic, best handled in that par­tic­u­lar department, and likely to achieve their stated goals. When the state is strapped for funds, it may be necessary to defend and compare existing programs. In 2008, for example, Governor Paterson asked each department and agency to prepare a “core mission bud­get,” rating their vari­ous programs as high, medium, or low in meeting their essential targets. He asked for cuts of 3.4 ­percent in March and 10.2 ­percent in July 2008 bud­gets and scaled-­down proposals for 2009.2 In 2020, similarly, when the potential economic impact of the COVID-19

25 8 C h a pt e r  8

pandemic became apparent, Governor Cuomo requested and was granted extraordinary powers to make further cuts across the board. In 2021 bud­get preparations, he asked most agencies why they should not be subject to cuts of at least 20  ­percent. ­These requests presaged very difficult bud­get years for every­one ­until the federal government stepped in with pandemic relief funds.

Comparing Programs When the bud­get examiners finish their program reviews (typically in late November), they pre­sent their recommendations to their unit heads in closed-­ door sessions that are in many ways at the heart of the bud­get preparation stage. Typically, their pre­sen­ta­tions are rooted in a baseline bud­geting concept representing last year’s ser­vices at next year’s prices.3 For most agencies, this is a fairly straightforward pro­cess. Salaries, for example, are adjusted upward (or down) to account for collective-­bargaining increases, retirements, and other changes in wages and personnel; supply costs are adjusted for the expected inflation rate; and so on. This pro­cess of projecting spending levels—­known as annualization—is not always straightforward. If bail reform laws, for example, result in a declining prison population, the spending baseline for the Department of Corrections would merit cuts, but the calculation of just how much of a cut is more complicated than with something such as an increase in the price of paper. The baseline concept has been widely accepted by bud­ get makers at the national, state, and local levels. Most participants believe this is an accurate repre­sen­ta­tion of what each departmental program is most likely to cost in current dollars. As Dall Forsythe writes, From a broad po­liti­cal perspective, the idea of “current ser­vices” mirrors the last a­ dopted bud­get and therefore uses the prior year’s legislative agreement as a starting point. From an agency man­ag­er’s perspective, the upward adjustments made in the baseline bud­get means that the agency at least starts even in its bud­get ­battles and does not have to fight for funds simply to pay for inflation or collective-­bargaining adjustments, neither of which are ­under the agency man­ag­er’s control. For the bud­ get office, the baseline “exercise,” as it is often called . . . ​provides a starting point for bud­get making that is more or less consistent from program to program and agency to agency.4 Once the examiners’ reports and projections are completed, the pro­cess of comparing programs and adjusting the overall numbers begins at the higher levels of the DOB and in the office of the governor. In December, as the outlines of the bud­get begin to emerge, a final round of communication with the



Ta x i n g , Sp e n d i n g , a n d P u b l i c  P o l i c y  P r i o r i t i e s

259

agencies occurs. At this stage, some of the better-­connected lobbyists and legislators are sometimes consulted and informally receive a diagnosis of the impending bud­get. Still, the pro­cess of preparing the bud­get in New York is generally in the exclusive province of the executive. Indeed, the precise contours of the governor’s bud­get are generally shrouded in considerable mystery ­until mid-­January, when the governor officially delivers the bud­get to the legislature. A 2007 reform requiring the governor to submit preliminary estimates in December has only marginally changed this dynamic. In the dry language of the DOB, “the final Executive Bud­get recommendations are formulated in a series of meetings between Division of the Bud­get staff and the governor.”5

The Executive Bud­get As they prepare their bud­get messages, New York’s governors come to the legislature in a remarkably strong strategic position. As we have noted e­ arlier, few governors throughout the United States are better positioned to get what they want from the legislature. This strength is rooted in part in the governor’s control over the executive branch and the consequent inability of most agencies to go around the governor. According to a study of the bud­get pro­cess, “when the governor’s bud­get has been submitted to the Legislature, agencies are expected to fall in line and support the document. Even if some of their requests ­were slashed, appeals to the Legislature at this stage can be interpreted as treasonous. ‘­After all, w ­ e’re all in the Executive Branch together,’ stated one man­ag­er.”6 Even in the absence of such togetherness, agency man­ag­ers know that the governor is still likely to have the last word, ­because the line-­item veto applies to any numbers the legislature may propose. At the same time, the path of least re­sis­tance suggests using baseline figures, keeping ­things much as they ­were the previous year. And ­there are also impor­tant tactical considerations to take into account. A governor who wants, for example, to increase spending for a program that is not popu­lar in one ­house of the legislature may propose drastic cuts to a more popu­lar program, not ­because the governor actually wants the cuts but in order to have something to trade. To read the governor’s bud­get as a statement of priorities ­will not do. For more than fifty years, governors from Carey to Andrew Cuomo low-­balled school funding, knowing that the legislature would restore the cuts. For the legislature, however, it is not that ­simple. The constitution permits the legislature to cut spending but not to increase it, so if the legislature wants more money for schools, it must bargain with the governor, perhaps making cuts somewhere ­else. New York’s constitution gives the governor twenty-­one days to revise the original bud­get pre­sen­ta­tion. This is last open win­dow policy advocates have

26 0 C h a pt e r  8

to make their case. A ­ fter the governor’s revisions are published, negotiations between the governor and majority-­party leaders of the Assembly and Senate take place largely b­ ehind closed doors.

Bud­gets and the Legislative Pro­cess Meanwhile, bud­gets presented to the legislature are referred to the fiscal committees that quickly put their staffs to work on detailed analy­sis. The first items of legislative interest are the economic assumptions under­lying the governor’s overall numbers. Each ­house of the legislature has its own economic con­sul­tants who proj­ect the coming economic climate, including how much the state can expect to collect in taxes and how much it ­will have to pay for necessary purchases. If it looks like a “good” year eco­nom­ically, more spending is likely. ­Because projections are inexact yet impor­tant in setting overall taxing and spending levels, they are controversial. Disagreements about the numbers often delayed the bud­getary pro­cess for weeks. A reform ­adopted in 2007 requires the comptroller to calculate the numbers if the governor and both h ­ ouses fail to agree by March 1, all but eliminating the delays if not the intensity of the negotiations. Meanwhile, party leaders—in consultation with the staffs of the finance and other key committees—­begin to prepare their own counteroffers to the governor’s bud­get. Some early maneuvering in the legislature through press releases and informal negotiations may produce changes in the governor’s revised bud­get, but they are usually minor. In late January and early February, the fiscal and other committees schedule a series of hearings on dif­fer­ent parts of the bud­get. Although t­ hese hearings seldom develop any new insights or surprises, they are well attended by members, staff aides, and lobbyists, who find what one staff aide described as “both a useful review of the numbers and a series of insights into the po­liti­cal nuances. If you listen carefully,” he continued, “to the kinds of questions asked and the ways in which ­people shade their answers you can learn a lot about how strongly vari­ous ­people feel about dif­fer­ent parts of the package.” Not ­until mid-­February do serious negotiations begin. T ­ hese early sessions typically are large and formal and include the governor, majority-­and minority-­ party leaders of both ­houses, and numerous staff persons. As the pro­cess moves ­toward deadline, the number of participants decreases to what was long described (before the election of a w ­ oman as Senate majority leader) as the “three men in a room” (the governor, the Senate majority leader, and the Speaker, plus a handful of top staff persons). For many years conventional wisdom held that “one and one makes three,” meaning that if any two of the key



Ta x i n g , Sp e n d i n g , a n d P u b l i c  P o l i c y  P r i o r i t i e s

261

negotiators cut a firm deal, the third would go along. The rule became less predictable as divided government sometimes made it advantageous to be the odd person out, particularly as issues ­were spun in the media. ­Factors other than party allegiance, as Forsythe suggests, “can create a competitive relationship between a governor and a legislative leader. Deference to the chief executive is not necessarily a value that helps a leader win election in a legislature. Indeed, a newly elected legislative leader may find it necessary to do b­ attle with a governor of the same party, as a demonstration of in­de­pen­dence.”7 With all three of the key players Demo­crats, this dynamic is still operative, especially as more progressive Demo­crats pushed against Governor Andrew Cuomo’s more cautious agenda. Legislative leaders also try to protect po­liti­cally marginal members from districts where school and general aid to localities issues have par­tic­u­lar importance. Almost ­every year, especially when the cupboard is bare, legislative leaders tend to oppose cuts to t­ hese programs, just as they did during divided government.

Bargaining Postures At the core of the Speaker’s and majority leader’s negotiations with the governor are their abilities to retain the trust of their respective party conferences. What­ever deals they negotiate with each other and with the governor must pass muster in their party conferences and ultimately in the legislature as a ­whole. At the start of serious bud­get negotiations, talks among the three key actors are frequently punctuated with pauses in which the Speaker and majority leader return to their party conferences for consultation and advice. The ability of legislative leaders to take a hard line in negotiations is a function of their ability to negotiate with solid party conferences ­behind them. Relationships between party leaders and the governor depend in no small part on questions of trust. Without trust—­until a final agreement is in place—­ every­thing is still on the t­able, and an agreement for highway spending may suddenly unravel when one of the key players compares it with a l­ater agreement on something e­ lse. No ­matter how much the players act as agents of their party conferences and other forces, the fact that most deals must ultimately be cut this way significantly impacts the pro­cess and differentiates it from practices in other states where the overall bud­get guidelines are established first and committees then fill in most of the numbers and negotiate with their counter­parts in the other h ­ ouse. Despite New York’s 1998 experiment with conference committees and ­later reforms requiring them to meet, the bargaining pro­cess in Albany continues to focus on the “three persons in a room” who determine the overall numbers and most of the details.

26 2 C h a pt e r  8

Aside from recent exceptions, preliminary negotiations are or­ga­nized into “­tables” or groups of staff who focus on par­tic­u­lar issues with representatives from each of the three negotiating groups. Certain ­tables are almost always kept open u ­ ntil the final days, with both sides championing issues they care about strongly. Typically, the bud­get is approved by both h ­ ouses of the legislature in a package of separate bills defined largely by major state agencies and a “big ugly” composed of miscellaneous items. Generally, when ­these bills are passed, ­every agency in the state pretty much knows how much money the agency ­will have for the next two months. In 2020, however, recognizing the uncertain fiscal effects of the pandemic, the legislature gave the governor authority subject to legislative review to adjust the bud­get throughout the year. This and subsequent post-­pandemic bud­gets have scrambled normal calculations markedly. While the economic impacts of the virus affected ­every state and local program, agencies such as the Department of Health and the Metropolitan Transit Authority ­were especially hard hit. Although the bud­get is divided into separate chapters, and some ­tables conclude their work with l­ittle controversy, scarcity increases the intensity of resource competition. B ­ ecause the governor must agree to the bud­get as a total package, even when a t­able appears closed, the pro­cess, in the immortal words of Yogi Berra, “­ain’t over ­until it’s over.” As new economic challenges appear, the temptation to revisit the agreed the overall tax and spending numbers is strong. Traditionally, when the governor and legislature could not agree on the bud­ get by the April 1 deadline, the legislature drafted a contingency bud­get to keep the state government open and ­running. If the governor refused to agree, retirees would not receive their pensions, civil servants would not be paid, and so on. Late bud­gets became the norm, with the legislature giving the governor the option of passing its amendments or accepting the legislature’s contingency plan ­until a new bud­get was agreed on. In 2009, however, Governor Paterson offered a contingency bud­get of his own, placing the onus on the legislature to accept or reject it. Since this time, the executive has been essentially in control. By ignoring the “­tables” and loading the bud­get into a single package, governors have l­imited the legislature’s bargaining power, eliminating its ability to load the bud­get with what one former director of the Ways and Means Committee called “time bombs.”8 When the bud­get is passed in separate bills, the legislature sends the governor bills that include education spending ten legislative days (­after which the governor’s veto power expires) before sending the bills that address economic development. The governor knows that the items vetoed in the first bill may come back to haunt him or her in the second bill. The bill’s language also may be used to reduce the threat of veto, ­either by conflating bud­get items in such a way that the line-­item veto



Ta x i n g , Sp e n d i n g , a n d P u b l i c  P o l i c y  P r i o r i t i e s

263

does not work or by linking bud­get lines the legislature wants to t­ hose on the governor’s list of priorities.

Administering the Bud­get Final passage of the state bud­get bill marks the beginning of a second round of calculations at the agency level. The community colleges receive ­actual dollar amounts and now must re­adjust their proposed bud­gets. How much can they add or cut from each bud­get line? What kind of increase or reduction in tuition makes sense? Is it pos­si­ble to get the county to adjust its contribution? Can or should the college dip into or augment its reserves? ­These decisions are made ­under the careful scrutiny of the DOB, which along with the office of the comptroller oversees the flow of revenues and expenditures. Prior to the 2009 bud­getary reforms, ­these questions could prove excruciatingly difficult to answer. Final passage of the state bud­get was typically a few days to almost five months late. With bud­get negotiations sometimes dragging into the summer, many agencies w ­ ere forced to begin their fiscal years not knowing how much state aid they would actually receive. Even during ­these elongated time frames, lean bud­gets dramatically widened the gaps for most agencies between the program priorities they sent to the DOB in November and what they received in April. Although bud­gets since 2009 generally have been completed on time—by April 1—­the extraordinary strains on both revenues and expenditures attributed largely to the pandemic have reintroduced uncertainties in the bud­getary pro­cess, with a vengeance. Once the bud­get is approved, money must actually be allocated to each agency or local government. When the legislature passes the final draft of the bud­get, it compiles a detailed summary of the agreements it has reached with the governor into a single document that, “although it does not have the ­legal status of the a­ ctual appropriations bills,” is so much more user-­friendly that it tends to serve as the document used by most legislators and bureaucrats as they try to figure out what the numbers mean. Within weeks of the bud­get agreement, each agency is required to submit a spending plan to the DOB explaining how the agency plans to operate within the bud­get and when the agency ­will need each allocation of funds. Before it can write any checks, an agency’s spending plans must be approved by the DOB and cleared by the comptroller. While t­hese clearances normally are routine, as needs and circumstances change, adjustments must be made. When the Department of Transportation, for example, confronts more snowfall than expected, the DOB typically does not challenge the DOT’s need to exceed its bud­get authority

26 4 C h a pt e r  8

for snow removal, though it may require the agency to find the money through savings in some other part of its bud­get. The DOB’s approval of an agency’s spending plans comes in the form of a certificate of approval confirming the availability of funds. Absent such a certificate, the comptroller may not issue any checks. In good times, an agency with a rec­ord of reliability and relatively predictable spending can obtain a certificate of approval for its entire bud­get. When funds are tight or an agency lacks the confidence of the governor and the DOB, money may be allocated one fiscal quarter or even one month at a time. Theoretically, no agency can spend more or less than the amount of money bud­geted for a specific function. Bud­get categories are usually broad enough to allow minor adjustments, and the rules are seldom so rigidly enforced that key programs are delayed or impaired. When an agency ­faces a true crisis, however, it must return to the legislature for what is called a deficiency appropriation. While the governor and the legislature respond to such requests when essential, they are not designed to provide a mechanism to restore cuts. Except when preauthorized by the legislature—as in 2020—­the governor is not authorized by the constitution to impound or refuse to spend appropriated funds. In practice, however, functional impoundments are almost routine and are legally restricted in only three significant ways. First, the governor may not touch the bud­gets of the legislature or courts. Second, debt payments and capital proj­ects currently ­under construction cannot be ­stopped. Third, local assistance appropriations cannot be impounded or reduced. Once the state aid formulas for health care, schools, and general aid to localities are signed into law, they cannot be changed, according to a Court of Appeals ruling.9

Local Government Bud­gets Even in large cities such as New York and towns such as Hempstead, the bud­ getary pro­cess in the state’s counties and municipalities is far less complicated. In small towns, local government leaders discuss the coming year with local agency heads, such as the highway superintendent, police chief, and head of the park and recreation commission, to assess their needs. Schools and some libraries have their own bud­gets that must be approved by the voters, while other libraries and in­de­pen­dent groups often receive a fixed amount each year. ­After at least one public session, the bud­get typically passes as a single piece of legislation. “­There may be some contestation between the legislative and executive branches, especially over fiscal policy, such as which programs should be cut by how much to balance the bud­get. But bottom up bud­geting is much more



Ta x i n g , Sp e n d i n g , a n d P u b l i c  P o l i c y  P r i o r i t i e s

265

common, in which requests coming up from the departments and programs are accommodated as much as pos­si­ble within revenue constraints. ­There is ­little or no po­liti­cal party influence and generally less policy conflict between the legislative and executive branches.”10 One reason that bud­gets tend to be less contentious at the local level is that much of the revenue comes from property taxes, which are far more stable and predictable than the taxes on income and sales on which the state relies. New York City’s income tax and sales taxes are much more variable than ­those of most other municipalities. The pandemic led to an exodus of residents, likely altering income and sales tax revenues, and decreased numbers of commuters and tourists who shunned the city further depressed sales tax revenues. The sheer size of the city’s bud­get produces a more complicated and cumbersome bud­get pro­cess, though it is not nearly as elaborate as that of the state. U ­ nder difficult economic conditions, facing reduced state aid and the city’s own shortfalls, New York City’s leaders have engaged in dubious accounting practices, gimmicks, and borrowing. T ­ hese practices nearly forced New York City into bankruptcy in 1975 and led the state to create a Financial Control Board with veto power over the municipal government. Shortly ­after the Control Board’s mandate expired and the 9/11 terrorist attack left the city again in dire straits, the state authorized the issuance of recovery bonds, and a similar type of funding was forthcoming in the wake of the pandemic. Generally, state and local governments use borrowed money only to pay for capital proj­ects. As with a mortgage on a ­house or securing a car loan, the idea is that as the value of the ­house or car lasts over time, so should payment for it. Operating bud­gets conversely have no lasting value. Once salaries are paid, a fire is extinguished, or a court trial concludes, the value is gone. As the lingering effects of the pandemic continue to ­ripple through state and city economies, the debate between t­ hose hoping to pass some of t­ hese costs onto ­f uture generations and ­those hoping to pay as we go ­will persist.

The Bud­get as a Guide to Policy Generally, it is assumed that agencies ­will defend their programs and that bud­ get personnel ­will challenge them. Bureaucrats believe their programs are impor­tant and often dislike bud­get personnel, calling them “number crunchers” and implying that they have ­little awareness of real-­world prob­lems.11 ­Actual allocations of resources often emerge from a series of interactions between the numbers p­ eople and vari­ous agencies. The chair of a college department, for example, ­will sometimes argue in f­ avor of letting a low-­enrollment

26 6 C h a pt e r  8

course run if it is required for graduation. The dean of the college can allow such exemptions but knows that he can allow only so many to pass the provost, who knows that low-­enrollment courses may attract the notice of the bud­get ­people, to whom a class with “only” thirteen students stands out like a sore thumb. When programs are compared, tensions between agencies and bud­get officials grow. When a dean makes his case to the finance office, the finance offer is at least “implicitly” comparing the case for a po­liti­cal science course with one being made by another dean for a math course, all in the context of FTEs. At the central office of the university, similar comparisons are made between CUNY’s City College and other CUNY colleges. In Albany, the numbers from CUNY are compared with t­hose from SUNY and ultimately with the numbers of other agencies in the bud­get. Most professors understand they are competing with other departments or colleges, yet they would bristle at being compared with the Office of Aging or the Department of Corrections. Yet, in a sense, ­every nickel spent by ­every agency is coming out of someone ­else’s bud­get. The decision to float a small course or to put an extra guard in a prison is a decision with implications for ­others. Theoretically, a bud­get serves as a map of resource allocation. In fact, it is a map that few can follow and one that is frequently outdated before it is printed. If it fails to provide a clear guide as to what actually happens in terms of taxing and spending, the bud­get is an impor­tant statement of what the governor and legislature would like to have happen in the coming year. While familiarity with state bud­gets is essential to understanding state government, t­here are two reasons that they can be misleading and that elected officials do not always know what they are ­doing when they create their bud­gets.

Predicting the F­ uture The first prob­lem in bud­geting is timing. The state’s fiscal year begins on April 1, so when the legislature passes a bud­get in spring 2022, the money it allocates ­will actually be raised and spent over the next twelve months. The bud­get proposal the governor submits in January predicts what ­will happen four to sixteen months ­later. When agencies submit their program requests to the governor’s bud­get office (usually in the previous September), the agencies are looking ahead an additional seven months from April 1. The Department of L ­ abor, for example, tries to predict in September 2021 how many ­people ­will apply for unemployment insurance in 2022–2023. The Department of Corrections tries to predict how many prisoners w ­ ill finish their terms and how many new convicts ­will arrive as much as a year and a half in the ­f uture.



Ta x i n g , Sp e n d i n g , a n d P u b l i c  P o l i c y  P r i o r i t i e s

267

To balance the bud­get, the governor’s office estimates how much revenue the state w ­ ill capture. The governor’s office must predict the employment and inflation rates, how the stock market w ­ ill perform, what retail sales levels w ­ ill yield in terms of the sales tax, and so on. When the governor submits a bud­get to the legislature, t­ hese estimates are among the first items of contention. Each ­house of the legislature hires its own con­sul­tants to compare their projections with ­those of the governor and the comptroller, who offers another set of revenue estimates. Not surprisingly, ­these estimates of how much the government ­will collect and spend are seldom precise. T ­ here is no sure way to forecast how many gamblers w ­ ill wager how much in the state’s casinos or what the unemployment rate ­will be next year. Moreover, the prob­lem of prediction is compounded by its po­liti­cal implications. A politician who f­avors a tax cut or increase in spending has a short-­term interest in overestimating revenues. Bud­ gets passed in election years tend to be especially optimistic. Politics aside, any attempt to predict ­future economic activity, the inflation rate in health care, or weather in winter is tricky business at best. As one former bud­get director advised ­future governors, “by its nature bud­geting is an error-­prone activity. T ­ hose errors do not necessarily reflect a lack of technical capability or a failure of effort on the part of your bud­get staff. Forecasts are simply wrong, and from time to time your bud­get officer w ­ ill bring you news of ­those errors.”12

Interpreting the Numbers The second impor­tant ­thing to understand about the New York State bud­get is that it is large and complicated, too big and complex for a single individual, even the state’s full-­time bud­get director, ­really to understand. ­There are too many units of government d­ oing too many ­things. Of the many state organ­ izations reporting to the governor, for example, the SUNY system accounts for approximately 6 ­percent of the overall operating bud­get to run its central office, sixty-­four college campuses, and vari­ous research and medical programs throughout the state. The larger campuses have more than ten thousand students each, dozens of academic departments, dormitories, museums, libraries, cafeterias, theaters, stadiums, and research facilities. Above departments such as the Department of Health, the Department of Education, and the Department of Environmental Conservation, the state has more than a thousand semiprivate authorities and commissions. No one—­not the governor, not the bud­get director, not the authors of this book—­has the vaguest idea of how many of t­ hese organ­izations receive state funds. Bud­get personnel rely on statistical indicators, including numbers such as FTEs, which mea­sure how many students are enrolled in how many courses

26 8 C h a pt e r  8

Box 8.1 Reading a Bud­get Po­liti­cal science textbooks (such as this one) try to make the case (as we do) that government bud­gets can give us an understanding of what governments actually do. This is fine in theory but not very helpful when one actually picks up the a­ ctual documents or goes online to figure out whose money is being spent for what. As government becomes larger and more complex, bud­gets become more difficult to read. But complexity alone does not explain how extraordinarily opaque many budgets—­including New York’s—­have become. ­Those in power “sometimes prefer not to share accurate information with o ­ thers.” Indeed, “bad data is good for some participants in the pro­ cess.”13 And t­here is nothing new in this kind of deliberate obfuscation. As far back as 1802, Thomas Jefferson wrote his secretary of the trea­sury to beware of the numbers provided by his pre­de­ces­sor Alexander Hamilton. Jefferson wrote that, in order to control the government, Hamilton “determined so to complicate it as that neither the President nor Congress should be able to understand it, or to control him. He succeeded in ­doing this, not only beyond their reach, but so that he at length could not unravel it himself. He gave to the debt, in the first instance, in funding it, the most artificial and mysterious form he could devise. He then mounded up his appropriations of a number of scraps and remnants, many of which w ­ ere nothing at all . . . ​­until the ­whole system was involved in impenetrable fog.”14 It is worth peering into this fog, first through the governor’s numbers, newspaper accounts, and the legislature’s final numbers (which are generally easier to follow). But the best places for real analyses of par­tic­ul­ar parts of the bud­get are generally found in the reports of ­those most affected, such as the teachers’ ­unions in the case of education and transportation companies in the case of transportation. Discounting for their biases, this is how most legislators comb their way through the bud­get. Even better are organ­izations established to specifically explicate the bud­get. New York City and a number of states have citizen’s bud­get committees to perform this role. In New York State, the union-­backed Fiscal Policy Institute and the state Business Council do well from their par­tic­u­lar perspectives, as does the Empire Center’s “See Through New York” website. And the comptroller’s annual reports—­though they do not appear ­until ­after the bud­get is in effect—­are usually quite a bit more readable.



Ta x i n g , Sp e n d i n g , a n d P u b l i c  P o l i c y  P r i o r i t i e s

269

For good and bad reasons, however, cutting through the fog can be difficult. During the pro­cess of crafting the 2020 bud­get, for example, ­there was no way accurately to anticipate what the fiscal implications of the COVID-19 crisis and the federal government’s response would be, prompting the legislature to give the governor broad powers to cut a number of programs, subject to legislative review and consent. The governor, however, never provided the public or the legislature with information on what cuts w ­ ere ordered. Although federal pandemic relief funds ultimately resolved the fiscal crisis, the governor’s ability to withhold such information is all too typical.

at what cost. ­These numbers, however, do not mea­sure quality. Few students, faculty, or even bud­get examiners would argue that an instructor teaching one hundred students in a course ­will do a better job than one teaching twenty or that the more quickly a hospital discharges patients, the better the job it is ­doing. The concept of efficiency begs the question, efficiency for what? For this reason, most governments have sought to implement “program” bud­gets that go beyond questions of how much to questions of how good. Program bud­geting seeks to allocate resources and mea­sure outcomes on the basis of programmatic goals and objectives. When the goals are well defined, program bud­gets offer the ability to compare agency outcomes in ways that so-­called line-­item bud­gets cannot. While program bud­gets can be incredibly useful in focusing resources, defining agency goals is not as easy as it sounds. Studies demonstrate program bud­gets become increasingly problematic as agency missions become more complex. The more complicated the agency’s mission, the less it is feasible to specify that mission. Does the failure of a student athlete to gradu­ate from college, a typical mea­sure of success, mean that the college has failed when he becomes a professional athlete or gets a high-­paying job? As program bud­gets rise, even if they are comprehensive, their consideration by the legislature tends to be ignored.15 Although ­there are exceptions—­Texas appears to be one—­the more common approach is one “where per­for­mance information serves only to supplement bud­get data that is or­ga­nized into lists of object classes and activities.”16 A troubling prob­lem with program bud­gets is that their emphasis on mea­sur­ able outcomes often skews favorable treatment t­oward easily mea­sured outcomes of dubious significance. In contrast with profit-­making organ­izations, “governments may be relatively inefficient in resource allocations, undertaking ser­vices that the private sector would be reluctant to provide at all. For example,

27 0 C h a pt e r  8

government-­financed medical care for the el­derly may be inefficient in the sense that other government programs, such as education and infrastructure investments provide greater economic returns to society.”17 Even when the mea­sures seem clear, their significance may not be. Does the fact that more highways ­were built last year mean that resources ­were well allocated? Does having more FTE students mean that your college is d­ oing better? Returning to the example of the college’s construction management program, if its goals are to train ­people for jobs, contribute to economic growth, and provide local businesses with well-­trained workers, how does one mea­sure ­these outcomes? The standard formula suggests quantifiable variables such as graduation and enrollment rates. Almost ­every state mea­sures success in terms of graduation rates. The higher the percentage of students graduating with the shortest “time to degree,” the better the college appears to perform. But what about a student who does so well that she drops out ­after just one year to take a good job? Success in real­ity, failure by the numbers. What about the student supporting his f­amily with a full-­time job who can take only one or two courses a semester and takes six years to earn a two-­year degree? Success in real­ity, failure by the numbers. What­ever t­hese numbers mean, they do f­actor retroactively into bud­get planning, mostly at the local program level as tools of long-­range analy­sis. The higher the level of decision making, nonetheless, the greater the tendency to revise line-­item bud­gets by making incremental changes. No m ­ atter the per­for­ mance mea­sures, large increases or reductions across bottom line figures of the state bud­get are most noticeable. Why do prisons receive a bigger increase this year than colleges? Why does school aid in urban areas increase more quickly than in rural areas? Why is ­there a hiring freeze in agency X and not in agency Y? In the end, t­ hese comparisons are the essence of the bud­getary pro­cess.

Strategic Bud­geting Individuals and families confront ­these same prob­lems: money spent on clothes cannot pay the rent. Corporations also must allocate resources and personnel. Governments differ from families in that many more p­ eople and prob­lems are involved, and governments differ from corporations in that ser­vices are more difficult to compare. In families, resource allocations are based on a small number of p­ eople with more or less established income streams. In the private sector, resource allocation occurs according to which divisions are most profitable. Government ser­vices, by their very nature. are neither s­ imple nor mea­sur­able in strict economic terms. Attempts to mea­sure agency outputs numerically, moreover, are elusive. Thus the need for strategic shortcuts such as annualization and incrementalism.



Ta x i n g , Sp e n d i n g , a n d P u b l i c  P o l i c y  P r i o r i t i e s

271

Po­liti­cal scientist Aaron Wildavsky argued that all government bud­geting is incremental, and that is the prevailing thought of most studies of the bud­get pro­ cess. Governments, according to Wildvasky, are too large and complex to understand without simplifying shortcuts. “No h ­ uman being,” as a former chair of the ­house appropriations committee once recounted, “regardless of his position and . . . ​capacity could possibly be completely familiar with all the items of appropriations contained in this defense bill.”18 And even if one could ­really understand one agency’s program, “­there remains the imposing prob­lem of making comparisons among dif­fer­ent programs that have dif­fer­ent values for dif­fer­ent ­people. This involves deciding such questions as how much highways are worth as compared to recreation facilities, national defense, schools, and so on down the range of government functions. No common denominator among t­hese functions has been developed. No m ­ atter how hard they try, therefore, officials in places like the Bureau of the Bud­get discover that they cannot find any objective method of judging priorities among programs.”19 The author also contends that bud­get officials make complex calculations through a set of simplifying assumptions, the most impor­tant of which is “incrementalism”: “The beginning of wisdom about an agency bud­get is that it is almost never actively reviewed as a ­whole ­every year in the sense of reconsidering the value of all existing programs as compared to all pos­si­ble alternatives. Instead, it is based on last year’s bud­get with special attention given to a narrow range of increases or decreases. Thus the men who make the bud­get are concerned with relatively small increments to an existing base. Their attention is focused on a small number of items over which the bud­getary ­battle is fought.”20 In New York, as one assemblyman said (with numbers updated), “we fight over maybe 2 to 3 ­percent of the bud­get. No ­matter how far apart the governor, the Senate, and the Assembly may seem, what is r­eally quite remarkable is that we all take a base of about [180] billion for granted while we scream and shout about the other [five].” Wildavsky’s concept of incrementalism is criticized for failing to encompass major upheavals, such as t­ hose produced by the economic collapses of 2008 and 2020. From the perspective of t­hose who might be called decrementalists, “the fundamental concepts of incremental bud­geting are completely inverted by retrenchment. For example, although the incremental bud­geting pro­cess is decentralized, decremental bud­geting inherently requires centralization. Similarly, the substantive decisions of incremental bud­geting are made in a fragmented manner, but decremental bud­geting requires a comprehensive package.”21 Such periods of retrenchment are not trivial, but they are noteworthy. Even when a governor with a dif­fer­ent set of priorities comes to office, as did Pataki in 1995, the governor is likely to focus on four or five areas at best. Higher education and ­mental health suffered in Pataki’s first bud­get, but subsequent changes in ­these

27 2 C h a pt e r  8

areas ­were incremental u ­ ntil 1999, with an impending reelection approaching. In 2007, when the Court of Appeals ordered a major revision of the formula for state aid to public schools, it was largely ignored first by Pataki and then by the new governor, Eliot Spitzer. Although Spitzer moved the needle in the direction of the court order, the basic model of education funding has remained in place ever since. Even with Governor Andrew Cuomo’s major revisions in 2021—­which included a thorough reexamination of all programs—­only incremental changes ­were made, cutting a ­little from this and a ­little more from that, keeping this tax steady and raising that one, postponing this proj­ect and canceling that one.

“Fair Share” and “Base” To further simply the pro­cess of examining a bud­get, Wildavsky offers two analytic methods for dealing with change. T ­ hese are what he calls an agency’s “fair share” and “base.” “The base is the general expectation among the participants that programs ­will be carried on at close to the g­ oing level of expenditures but it does not necessarily include all activities.”22 SUNY’s bud­get, for example, may increase or decrease a few percentage points, but no college is likely to be closed, and few major programs are likely to be terminated. The attempt to close the CUNY Hostos campus during the city’s fiscal crisis in the 1970s failed. De­cades ­later, Assemblyman Brian Murtaugh (an author on the first and second editions of this book) called his ability to save the SUNY Maritime College one of his prouder moments. Similar attempts to consolidate or close campuses have almost always failed. Significant bud­get cuts can force changes, as in the 1990s when CUNY City College eliminated its nursing and theater departments rather than force e­ very other department to implement cuts of 20 ­percent, but such decisions are rare. The normal assumption is that the pro­cess of decision making that led to the creation of a college or program in the first place took into account the major arguments for and against. If the arguments w ­ ere good then, why bother reviewing them now? “No one was born yesterday,” as Wildavsky argued. Years of experience with the SUNY system make annual reconsideration of its mission and bud­get superfluous at best. Absent evidence of a significant change in circumstances, a top-­to-­bottom review is a waste of time. What­ever the flaws of this approach, anyone who has tried seriously to assem­ ble a bud­get recognizes that ­there must be a baseline recognizing the value of experience. Take, for example, school or home heating costs. You could in theory calculate average winter temperatures in the area, the efficiency ratings of the heating system, and the costs of energy. Or you could simply look at last year’s bills and adjust for expected changes (if any) in what most governments



Ta x i n g , Sp e n d i n g , a n d P u b l i c  P o l i c y  P r i o r i t i e s

273

call “current ser­vices estimates” that try to predict what it would cost the agency to do last year’s job at this year’s costs. “Fair share” is a more elusive concept. It means that, absent solid reasons to the contrary, the established base should remain in place both absolutely and in relation to other agencies and programs. A new administration can change ­these calculations dramatically, and priorities may shift over time in such a way as to redefine the concept of fair share. From 2000 to 2010, for example, as crime rates dropped and the prison population declined by nearly 25 ­percent, twenty prisons w ­ ere closed, and state spending on criminal justice declined by a comparable amount. Changes as dramatic as this are relatively rare, but original bud­get calculations can be discarded in times of extreme crisis or change. Certain bud­get categories—­debt obligations for example, or the costs of maintaining the Division of the Budget—­are almost impossible to cut. ­Others are unlikely targets, such as ­those that are mandated by federal law or bring in federal matching funds. ­There are other programs, moreover, that for po­liti­cal or moral reasons are difficult to cut, including assistance for the disabled. For most other programs, however, the concept of “fair share” usually means the cuts ­will be relatively proportionate. Program advocates seek to protect their bases and maintain or expand their fair share. A favorite agency device to protect its revenue stream is a “locked box,” a tax or fee that can be used only for a specific purpose. In New York, for example, license fees for fishing are channeled into the Department of Environmental Conversation’s fisheries management fund, while thruway tolls are funneled to the Thruway Authority. Dif­fer­ent kinds of accounting procedures can be adjusted to alter perceptions of program effectiveness, and a variety of decision procedures can be used to circumvent bud­getary guidelines. In the short term, agencies can tap into their capital funds, borrow against ­future revenues, or delay billings to meet current needs. But agencies can seldom get away with slippery work-­arounds in the long term. Although the governor’s power to overrule agency allocations technically is l­ imited, gubernatorial control of most agencies is significant. Knowing who appointed them, most administrators go along. In 1995, when Governor Pataki announced he was cutting CUNY’s bud­get for the spring semester, the chancellor acceded. Cries of outrage from faculty, students, and legislators ­were of no avail, ­because the chancellor refused to spend the money. Although she was widely criticized for not taking a more aggressive stance, no administrator heading into a new bud­ get year wants to begin by picking a public fight with the governor. One official in the state insurance department told us that the only realistic option he would have in a similar circumstance was to “go to the second floor and beg.”

27 4 C h a pt e r  8

Who Pays? Most of the time, when journalists and elected officials discuss “the bud­get,” they are referring to the $175 billion of “all funds” spending in the governor’s bud­get. Of this amount, only about $110 billion is state money, with the remainder coming from the federal government. And this amount includes neither funds borrowed for capital proj­ects ­under authorities and special programs nor the fees collected by in­de­pen­dent authorities to support their operations. More impor­tant, New York is unusually reliant on its localities and local taxes to support major ser­vices, as noted in chapter 2. Thus, New York’s combined state and local tax burden justifies its reputation as a high-­tax state; however, the state is below the national midpoint in taxes imposed directly on its residents. The formal state bud­get is deceptively small and tells only a part of the story of how funds are raised and spent. The state’s share of the total—­explained in the next pages—is just over half the total. For bud­getary purposes, “­these numbers are in constant flux. Most state tax revenue sources are heavi­ly influenced by the economy. In general, state taxes rise when the state economy grows, income taxes grow when resident incomes go up, sales taxes generate more revenue when consumers increase their purchases of taxable items, property taxes increase when h ­ ouse prices go up, and so on.”23 Economic downturns that reduce tax collections si­mul­ta­neously tend to increase the costs of safety net programs such as unemployment insurance and health care. Hence, ensuing bud­getary prob­ lems can be solved only by raising, cutting, borrowing, or begging, and begging from the federal government seldom works. A famous headline from the Daily News aptly summarized how New York City’s 1975 plea for help was met by the administration of President Gerald Ford: “Ford to City: Drop Dead.” What­ever the federal government does offer in hard times, it is almost never enough. The tendency has been to offer less, not more. ­Under devolutionary federalism (see chapter 2) the tendency instead is to pass the buck to states, leaving them to decide what to raise, cut, or borrow and how.

State Taxes, Transfers, and Fees During the 2019 fiscal year, the state collected approximately $76 billion in taxes, $25 billion in miscellaneous receipts, and $61 billion in federal grants. By far the most impor­tant source of tax revenue is personal income tax, which generates more than half ($48 billion in 2018–2019) of all tax receipts. Sales taxes (on products and on goods) and user fees (such as motor vehicle registration charges) are second to income taxes, generating $18 to $20 billion each



Ta x i n g , Sp e n d i n g , a n d P u b l i c  P o l i c y  P r i o r i t i e s

275

a year. Corporate taxes account for about $8.5 billion in revenue. As we have noted, however, t­ hese numbers tell only part of the story. When the capital budget—­only part of which appears in the bud­get ­adopted by the legislature—is added, it totals approximately $15 billion in money borrowed by vari­ous public authorities, off-­budget accounts administered by state agencies, and taxes and fees imposed by local governments. Revenue in New York continues to decline in the proportion of dollars captured by taxes on individual and corporate income. At the close of the Rocke­fel­ler era, New York had one of the country’s most progressive income taxes, with the very poor paying nothing and the very rich paying as much as 15 ­percent on their highest earnings. Gradually, the legislature worked with Governors Carey, Pataki, and Mario and Andrew Cuomo to reduce the upper rates and increase the lower rates for personal income taxes. In 1998, the upper tax rate was reduced to 6.85 ­percent, a rate paid not just by millionaires but on any income over $47,500 for a single person with no deductions. Rocke­fel­ler’s progressive income tax essentially became a flat tax in which every­one above the poverty line paid essentially the same rate. Shortfalls in the 2008–­2009 recession resulted in the passage of a “millionaire’s tax” of 7.9 ­percent on earnings greater than $780,000. The tax was raised to 8.8 ­percent in 2019. U ­ nder this system, no one pays taxes on the first $8,400 of income, and many residents with no other income receive a credit from the state. A single person earning up to $16,900 pays nothing on the first $8,400 and 4 ­percent on the balance. At $16,900, the first $8,400 is still exempt, and the rate goes to 4.5 ­percent on e­ very extra dollar up to $20,200. The rate increases in increments from ­there (see t­ able 8.1). This is how a progressive tax works, and despite the fact that the system is nowhere nearly as progressive as it was during the Rocke­fel­ler era, New York’s income tax remains among the nation’s most progressive. New York also is one of only a handful of states that does not impose a sales tax on groceries—­a tax that disproportionately affects the less affluent. Although a 2019 index that “mea­sures the impact of each state’s tax system on income in­equality” ranked New York the 6th fairest of the fifty states, its overall tax schedule was still classified as more regressive than progressive.”24 The primary source of this in­equality stems from the state’s heavy reliance on regressive local property taxes. While renters do not technically pay property taxes, they are generally factored into the rents charged by landlords. Poor ­people pay a much higher percentage of their net pay on housing in New York than in other parts of the country, with lower-­income ­people tending to pay the highest percentages of their incomes on housing, with a state average of 4.2  ­percent of their incomes for the poorest families compared with just

27 6 C h a pt e r  8

­Table 8.1  How New York State income taxes are calculated TOP OF BRACKET

INCOME

TAX RATE

ADDED AMOUNT

First $8,400

0

0

0

$8,401–16,900

4.0%

340