Blair Horner's Capitol Perspective

2023 and a New Legislative Session, What to Expect

Posted by NYPIRG on January 2, 2023 at 9:31 am

Governor Hochul has been sworn in to her first full term as governor and state lawmakers return this week to Albany.  While the swearing in of Governor Hochul marks the first time a woman has been elected as the state’s chief executive, in many ways January 2023 is not markedly different than 2022.

A year ago Hochul was governor and the Democrats had supermajorities in both houses.  The Attorney General was, and is, Letitia James, and Tom DiNapoli is the state Comptroller – a position that he has held for 15 years.  The ongoing COVID pandemic is expected to be, well, ongoing.

Yet, there will be differences.  Last year, Democrats were rallying around Hochul after she became governor upon the resignation of Andrew Cuomo in August 2021.  Governor Hochul hit the ground running for her election.  Now she’s been elected to a full four-year term.  Democrats, being Democrats, are already showing signs of rebellion within their ranks.  Governor Hochul’s nominee for Chief Judge of the state’s highest court has run into opposition from the progressive wing of the Party and there is significant – and growing – opposition among state Senate Democrats, the people who will have to ultimately vote on the nomination.

The state’s COVID pandemic emergency powers that gave the governor enormous authority over state lawmaking expired this past Fall when the governor said she believed that coronavirus cases were under control.  While it’s arguable that COVID is under control, the return of the governor’s powers to pre-pandemic status is a change.

As things settle down to a new “normal” New Yorkers can look ahead to a new legislative session that will take on issues large and small.  If history is any guide, there will be something like 17,000 bills introduced during the new two-year legislative session.  Of those, upwards of 1,000 will be approved by lawmakers in each of the two years.  Although Governor Hochul has been more aggressive in her use of her veto pen as she’s settled in as governor, the overwhelming majority of these bills will become law.

As the session gears up, what can New Yorkers expect to be the biggest debates?  Of course, no one can predict all that will happen – for example, who could have predicted the pandemic in 2020 and then the resignation of Governor Cuomo in 2021?  There are, however, key issues that are likely to dominate 2023.

First, the budget.  In every session, the budget dominates.  Last year the state appropriated over $220 billion for New York programs.  The real budget debate is usually conducted in secret with only a perfunctory public process, with the governor holding the upper hand and driving the debate.  As a result, the governor’s signature initiatives are contained in her budget plan, which is due to be presented by February 1st

In 2023, the first year of a four-year term, the governor will want to tackle the toughest fiscal challenges, not let them fester until she (or legislators) faces the voters.  This session creates a dilemma:  The state’s finances are likely in the best shape this year, with the situation deteriorating in the years ahead – as the pandemic financial aid from the federal government dries up.  Look for the governor to propose a tight budget.  Legislators will feel pressure from local governments and constituent groups to spend.  How lawmakers react to the governor’s proposal will drive not only the budget process, but the relationship between the executive and legislative branches as well.

As mentioned, there is a growing rebellion from the left wing of the Democratic Party to the governor’s pick to head the state highest court – the Court of Appeals.  That fight will be first out of the gate and likely be viewed as a test of the governor’s power as well as her ability to have a collegial relationship with the Democratic lawmakers that control both legislative chambers.

The governor has cited the issue of housing and the homeless as a top priority.  There can be no doubt that lack of affordable housing makes worse the number of homeless residents and also contributes to the high cost of living in New York.  Local officials including the influential New York City mayor have also said affordable housing is a priority.  However, there’s no consensus plan despite widespread agreement on the need to address the problem.

Building affordable housing is a difficult issue: there can be considerable local opposition, New York (particularly in New York City) has a complicated system of housing regulations.  Real estate developers are also looking for state benefits in order to make it more profitable to build.  Expect a fight over whether to renew or replace tax incentives that encourage private developers to build market rate projects as well as affordable housing.  A tax abatement program was allowed to expire in June of 2022.  The governor has pledged to bring back real estate incentives and we’ll likely see that as part of her budget. 

Dealing with the climate catastrophe is another top item.  In December, the state’s Climate Action Council released a roadmap plan for how the state can meet its ambitious, science-based climate goals.  Many of the recommendations can be implemented through regulations, but others will require legislation.  The governor will need to provide new revenues to help make the state more resilient as well as fund the move to a greener energy system. 

The governor also should tackle the problems of the state’s higher education system, much of which is teetering on the financial brink. 

There will be more difficult issues that do not rely on the budget but may get addressed in that debate.  Issues such as combating crime – an issue on which the governor was relentlessly attacked by her Republican opponent in the recent election.  Measures to improve the state’s democracy – like implementing the new voluntary system of public financing and enforcement – will also impact on Albany’s debates.

These are just some of the obvious, big-ticket issues that will be in play.  The 2023 session is set to begin and with it are the hopes that New Yorkers will see a productive and responsive session.

Democracy – Keeping at This Work in Progress

Posted by NYPIRG on December 26, 2022 at 9:08 am

Concern over the fate of American democracy hit a fever pitch after the coup attempt by former President Trump following his election loss in 2020.  Americans across the nation expressed their worries to pollsters earlier this year when it was reported that more than half of all American adults believed democracy is not working well.

The attempt to overturn a fair and free election was a first in America. The Trump-inspired violence that has followed understandably put the nation on edge, so much so that a bipartisan agreement was included in last week’s $1.7 trillion budget spending bill.  Tucked inside the 4,155-page budget plan was a provision designed to clarify federal law regarding the process for certifying a Presidential Election.  That provision clarifies that the vice president has a purely ceremonial role in the proceedings during an Electoral College count to determine a Presidential victor.  

The new provision also raises the bar for objecting to a state’s slate of electors.  As it stands now, it takes just one member of the House and one senator to challenge a state’s electors and send both chambers into a potentially days-long debate period, even without legitimate concerns.  The new legislation would raise the threshold for an objection to 20% of the members of each chamber.

Of course, that change alone will not bar an unscrupulous and corrupt individual from scheming to overturn an American election, but it does provide clarity in one aspect of the system.

Here in New York, the public has endured long-simmering problems in its democracy, most notably voter registration and elections administration laws. Both are run by the two major political parties who have too often viewed elections administration to achieve partisan advantage – even at the expense of the public interest.  That view has contributed to New York being at or near the bottom of the nation in terms of voter participation.

Starting in 2019 that began to change.  Reformers – most notably in the state Senate – spearheaded changes that now have New York following best practices found in other states.

Last week, another reform was approved by the governor that will make it easier for new voters to register.  Under New York’s constitution, no new voter can register to vote within ten days of the election.  Yet, the state law pulled that deadline back to no sooner than 25 days prior to an election.  In other words, elected officials had made it harder for new voters to register.  The change last week lowers the registration bar to match the constitutional minimum – ten days.

This is the latest installment of changes approved this year.  Earlier the governor approved the “John Lewis Voting Rights Act” which removed barriers to the ballot box through new protections for voters who have been historically disenfranchised – members of racial, ethnic, and language-minority groups.

Earlier this month, the governor approved legislation to address the so-called “wrong church” rule.  If a voter fills out an affidavit ballot at the wrong polling place but is in the county and state Assembly district where registered, their ballot will be accepted.  Before the change, these votes weren’t counted because the voter was at the incorrect polling place.

There is still a lot to be done.  Despite numerous improvements to the state’s elections systems, voter turnout is still below the national average (better than it was but still trailing the nation). 

One example of a voting best practice that New York should embrace is to rely on mail-in ballots to supplement voters going to the polls.  In an age where some states such as Oregon successfully moved to conducting entire elections via mail, it is time to rethink the state’s policies with an eye towards expanding absentee voter opportunities to increase voter participation.  Oregon’s experience shows that widespread use of mailed-in ballots has not resulted in fraud but has increased overall turnout to among the highest in the nation.  

Much of the rest of the nation is moving ahead in this area:  28 states and the District of Columbia permit any qualified voter to vote absentee without offering an excuse. 

Here in New York, the COVID-pandemic allowed this option.  New York State’s Constitution allows voters to obtain a mail-in absentee ballot but only for specific reasons – illness and travel.  Using pandemic emergency powers, New York broadened voter access to mail in ballots, thus protecting voters and poll workers from unnecessary exposure to the virus.

Now that those emergency powers have now run their course, will the governor and state lawmakers take the necessary step to keeping this popular provision on the books? 

When lawmakers return next month, strengthening the state’s democracy should be a priority.  Whatever gets done next session, continuing to improve voting practices – including making it easier to vote through the mail – must be on the front burner. 

New York Unveils Its Climate Roadmap

Posted by NYPIRG on December 19, 2022 at 8:47 am

The planet is rapidly heating up.  The warmest years in the instrumental temperature record have occurred in the last decade, with 2016 and 2020 being the two warmest years in the period since 1850.  The increasing warmth is fueling changes that have resulted in stronger storms, rising sea levels, melting glaciers, famine, and human migration.

The increasing heat is primarily driven by human activity, most notably the burning of oil, gas, and coal to power civilization.

Scientists and climate experts have urged policymakers to move away from the use of fossil fuels and move toward reliance on renewable forms of energy, powered by the sun, wind, and increased efficiencies.

Some governments have reacted to that call.  Here in New York, former Governor Cuomo teamed up with former Vice President Gore in 2019 at a ceremonial bill signing to enact legislation that set up science-based, aggressive goals with the goal of slashing the state’s greenhouse gas emissions 85% below what they were in 1990.

At that event, the former governor stated, “Cries for a new green movement are hollow political rhetoric if not combined with aggressive goals and a realistic plan on how to achieve them.”  While that legislation set aggressive goals, it did not include an implementation plan.  That was left to the Climate Action Council established in the legislation.

The Council began its work two years ago and last week publicly released its plan.  The 400-plus page document is expected to be approved with little or no changes at a meeting of the Council this week. 

Assuming that the plan is followed, New Yorkers would see dramatic changes in their lives – from greener energy sources to the use of electricity to heat homes and buildings, and to power their vehicles.

The report spends significant time, appropriately, on ensuring that low-income and other front-line communities are adequately considered and protected as new technologies come online.  These communities have suffered far more than most from the public health harm caused by air pollution.  In addition, the report details plans for establishing the necessary labor transition from a workforce relying on climate damaging fossil fuel infrastructure to one that relies on green technologies.  Current workers can’t be left behind.

The report also seems to endorse the continued use of New York’s Vietnam-era nuclear power plants – facilities that utility ratepayers have already spent billions in special subsidies to keep open.  The plan also seems to advance the possibility of using untested and flawed technologies that promise to capture fossil fuel pollution and “sequester” it – usually in the ground.  That’s been long promised but has failed to produce results at a scale that makes it a viable process.

One potentially fatal flaw in the plan is that it relies on the current roster of state agencies to do the heavy lift of running these new programs.  New York’s state agencies have long suffered from fiscal neglect and are in no position, currently, to administer existing programs, much less handle gigantic new responsibilities.  It is in this area that the Legislature should focus attention.

Moreover, while the report discusses at length the need for public accountability, its proposals appear to fall short.  While discussing the need for annual reporting of greenhouse gas emissions, much of the public assessments of its actions occur less frequently. 

Until the public has an easy-to-understand, easy-to-access dashboard that tracks the progress the state is making toward its goals, there will be insufficient accountability.  After all, the climate law was approved three-and-a-half years ago and only now the required report is being released.  In addition, if the plan is approved the state government has to follow its normal regulatory process.  Thus, it’s possible that these plans will take time to come online, maybe in the next year or so.

Given the worsening climate catastrophe, there is no time to waste.  New Yorkers need to be able to hold their climate policymakers accountable, which cannot be done without real-time information.  And the government can’t deliver the goods with its existing structures.

Lastly, there was little about how much money will be needed to deal with the climate crisis.  The report is about moving New York to a green future, which is necessary.  But even under the best of circumstances, the state will have to spend tens of billions of dollars to respond to the rising sea levels and intense storms resulting from a hotter planet.  For example, the U.S. Army Corps of Engineers estimates that it will take $52 billion to protect New York Harbor alone!  And that’s just a small part of mitigating projected damage – transition to renewable energy and a modern electric grid will be a huge, expensive undertaking.

So, the question remains:  Who will pay for those costs?  Those bills will definitely come due.  An important addition to the Climate Action Plan is a strong policy signal that the polluters – the oil companies – who created this mess and long profited from it should be on the hook to pay for the cleanup.  That type of justice is something we should all want.

Holiday Surprise: Pay Raise for Lawmakers?

Posted by NYPIRG on December 12, 2022 at 12:31 pm

The elections are over, the year is winding down, and . . . a pay raise for state legislators may be in the offing.  Historically, pay raises have been considered right after elections since lawmakers know that the public doesn’t support raises and it gives them a couple of years to cool off.  Holiday-filled December is usually the month and so rumors abound in Albany that this is the year for another one.

What triggered this year’s speculation (so far there is no official declaration of interest) was last month’s decision by New York’s highest court that the current mechanism for deciding on pay raises for the executive and legislative branches is constitutional. 

To understand how we got here, it’s useful to know the back story behind the last pay raises for lawmakers and statewide elected – and appointed – officials to explain the current pay raise rumors and the tortured mechanism that could allow them.

Between the years 1998 and 2019, lawmakers received zero pay raises.  Public opposition and partisan gridlock left frozen the salaries of lawmakers and members of the executive branch alike.  Then in 2015, then-Governor Cuomo and the state’s legislative leaders struck a deal: A new commission would be established that would decide on pay raises. 

The final result was that it advanced a pay raise plan right after the 2018 election.  Unless the Legislature intervened to stop its own pay raise, it would go into effect starting on January 1, 2019, which it did.

As a result, state lawmakers and top agency heads got salary increases.  Lawmakers’ salaries jumped from $79,500 to $110,000 – the second highest in the nation, just behind California (which is nearly $120,000).  The pay raises would continue to go up until they reached $130,000.  The panel also called for hiking the governor’s salary, which was also approved by lawmakers and now New York’s executive is the highest paid in the nation at $250,000.

But the salary increases for lawmakers came with some important caveats.

The commission voted to curtail lawmakers’ outside income to 15 percent of their salary and it moved to eliminate many of the lucrative stipends to which lawmakers have approved for themselves in previous years, which sometimes made up as much as half of their base pay.

In announcing their recommendations, the commission’s members emphasized the linkage between the pay increase and the restrictions on other income. They said the measures would help attract top talent to a body long tarnished by corruption and inefficiency.

That package was challenged in court.  Initially, the courts ruled that the pay increase could go into effect but threw out the linkages to outside income limits and the automatic salary increases advanced by the commission.  The high court’s decision last month found that the Legislature’s plan to establish a commission to determine a pay raise was constitutional.  The decision opened the door to lawmakers’ consideration of future pay raises.  And that’s where we are today.

Lawmakers argue – and Governor Hochul agrees – that they work hard and are entitled to an increase, one that had been blessed by the pay commission.  Yet at the same time, they have been unwilling to curtail outside income.  They consider themselves “part-time” and thus allowed to have second jobs.

It is that outside income that has been troublesome in the past and led to high profile scandals, most notably the former Assembly Speaker Sheldon Silver who went to jail for corrupt schemes that stemmed from his outside business interests. 

In addition,  outside experts consider New York’s Legislature “full time.”  The National Conference of State Legislatures is among them, arguing that full-time legislatures “require the most time of legislators, usually 80 percent or more of a full-time job. In most [such] states, legislators are paid enough to make a living without requiring outside income. These legislatures are more similar to Congress than are the other state legislatures.”

Congress limits outside income because the members are full-time.  The Congress limits outside income to nothing more than a small amount and bans income from any entity in which the Congressmember has a “fiduciary” relationship with a client.  Being a “fiduciary” means putting the interests of your client ahead of your own.  When you’re an elected official whose constituents’ interests are paramount, how do you do that when you have clients?  Can lawmakers serve two masters?  Both the Congress as well as the pay commission said no.

Ironically, a relatively small percentage of lawmakers have substantial outside income, but it’s their opposition which has blocked approval of a Congressional-style limit in Albany.  If lawmakers want to be the highest paid in the nation, they must take a meaningful step to curb Albany’s corruption risk: No outside income for any elected official.  New York’s elected officials cannot serve two masters.

Redistricting Returns!

Posted by NYPIRG on December 5, 2022 at 8:29 am

New York’s efforts to finalize its political boundaries for the State Legislature entered a new phase last week.  A Redistricting Commission – made up of equal numbers of Democrats and Republicans – released a proposed map for the New York State Assembly.  This proposed map is set for public hearings over the next few months with legislative action to follow.  The plan is for the new Assembly maps to be in place in time for the 2024 election.

Most New Yorkers would be excused if they had thought that the redistricting process was already completed.  After all, the once-in-a-decade census was completed and new lines were drawn in time for the 2022 election.  So, what happened to trigger another round of maps? 

In 2012, former Governor Cuomo and the state Legislature approved a plan to establish what they called an “Independent” Redistricting Commission.  The plan was advanced as a state constitutional amendment, and was passed in 2014.

Critics at the time argued that the amendment was deeply flawed and would, among other weaknesses, lead to partisan gridlock since the “independent” Commission was not, in fact, independent.  Instead, it was a Commission with equal numbers of Democrats and Republicans.

In 2021, the Commission gridlocked.  The state Constitution allowed the Legislature, with the governor’s approval, to draw up its own lines.  The Legislature did that earlier this year. 

Republicans challenged in court the Congressional and state Senate lines, arguing that the new districts were unconstitutionally partisan.  The state Constitution requires that districts be compact and not favor or disfavor political parties.  At that time, there was no challenge to the Assembly lines.

New York’s highest court agreed with the Republicans and the court itself drew up the lines for New York’s members of Congress and state Senate.  That decision opened the door to a legal challenge against the state Assembly lines as being equally unconstitutional.

Again, the court agreed, but ruled that since the action was so close to the Election, the Assembly lines drawn by the Legislature in 2022 would stay in place, but that new lines would have to be drawn for the 2024 elections.

So, here we are.

The court ruled that the so-called Independent Redistricting Commission should take a stab at new maps and if it failed the court would, once again, step in.

Last week, Democrats and Republicans on the Commission unanimously agreed to its new maps.  The Commission plans to hold a series of 12 public hearings on the draft plan. The first will be Jan. 9 in Buffalo.  After obtaining public input, the Commission may revise its maps and submit them to the Legislature to approval.  The Legislature can either accept or reject the drafted map. If they are rejected, the IRC would redraw them again. If they are rejected another time, the Legislature could then draw the maps themselves. You can take a look at the current and drafted maps here: https://nyirc.gov/assembly-plan.

Media reports from across the state have identified major challenges for members of the Assembly.  In Central New York, for example, the draft plan would force three state Assembly members to run in newly configured legislative districts where they don’t live.  New York requires state Assembly and Senate members to move into the district they represent within one year of an election.

So, are the new maps better?  The public hearings will provide useful analysis as to how the proposal impacts communities as well as whether the plan meets constitutional muster.

At the macro level, one thing is clear – the new maps create districts that do not have dramatically different populations.  Under the current maps, 39 of the 150 Assembly districts have significant population deviations from the average.  Those districts can range from as small as nearly 128,000 people to as large as 141,000 people – a range of 13,000.  Under the proposed maps, none of them have such a large range.  In fact, 130 of the 150 proposed maps are within +/- 2% of the average.

Numbers alone don’t tell the entire story, but it does mean that the Commission’s mapmakers were far less likely to use population differences to “game” the system.

Our democracy hinges on the principle of “one person, one vote.”  Whatever comes of this latest process, that principle must be the heart of any final redistricting plan.