It’s Not The Money, It’s The Principle

By Laura Nahmias and Andrew J. Hawkins

In our new issue’s cover story, Laura Nahmias considers whether the Legislature is finally pushing back against Gov. Andrew Cuomo in this year’s budget:

It was a Senate Rules Committee meeting like most others: about a dozen Republican senators well past middle age, sitting around a conference table in suits and ties, ready to bring a bill to the Senate floor.

But it was 3 a.m., Wednesday had bled into Thursday, and they were working because Gov. Andrew Cuomo had put their continued survival in the majority on the line. If they stayed awake long enough to pass several massive pieces of legislation, Cuomo would sign a bill entrenching their gerrymandered districts for another decade.

Republican Sen. Owen Johnson, age 82, had been on the phone all day after his son-in-law was in a car accident. No one was seriously injured, though, so Johnson stayed at the Capitol into the wee hours.

“It’s going to be a long, long night,” he said.

What made the night even stranger is what those lawmakers weren’t doing: fighting over the budget. All-night sessions are not unheard-of in Albany, but usually they involve cutting deals over how to spend billions of dollars.

This year, with much of the budget gap closed in last December’s tax deal, the big financial decisions were already over by the time the Legislature gaveled into session. In the late-night madness of last week’s “big ugly,” the budget never came up.

Instead, lawmakers are now tussling with Cuomo over language. His proposed budget is marbled with language to expand executive powers, repeating this phrase hundreds of times: “[T]he amounts appropriated herein may be (i) interchanged without limit, (ii) transferred between any other state operations…and/or (iii) suballocated to any state department.”

Cuomo spokesman Josh Vlasto insists it is not as far-reaching as it sounds, and said the governor’s negotiators are committed to putting it in the final budget.

“This is a minor change that would apply only to back-office functions, and would allow the governor to move forward with his effort to make government more efficient and cost-effective for taxpayers,” Vlasto said.

Lawmakers don’t think it’s that simple. They say the “interchanged without limit” phrasing would usurp their power over state spending, and stripped that wording from the budgets they passed in the Senate and Assembly.

After a year in which both Democratic and Republican conferences compromised their principles on issues from gay marriage to drastic budget cuts, lawmakers say they have reached their breaking points.

There are some things they won’t do, even for Cuomo.

 

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The Legislature saluted Cuomo last week for strong leadership in wrapping up major accomplishments in a single package. But since the governor’s first year in office, lawmakers seem to have grown a stronger backbone.

Senate Majority Leader Dean Skelos stood next to Assembly Speaker Sheldon Silver last week and said Cuomo’s budget language was a step too far.

“The speaker and I both agree that the Legislature, we are part of the governing process,” Skelos said. If the governor wants to “come back with recommendations to change our appropriations, we would be open to it.”

“The ability to take large sums of money in the budget and move them around from program to program and department to department, without the approval of the Legislature, undermines our traditional checks and balances,” said Assemblyman Jack McEneny. “We need that second set of eyes, and need to convince people that that’s a good idea.”

“Why even have a Legislature?” asked Dan Feldman, a former member of the Assembly and coauthor of the book Tales From the Sausage Factory. “How do you justify this? Efficiency? Come on. We’re supposed to be avoiding dictatorships here.”

The power move rankles even those who would fall in line otherwise.

Assemblyman Félix Ortiz, for instance, likes Cuomo’s budget because it consolidates human services agencies instead of just cutting them.

“It’s efficient,” he said. “Cuomo has managed to get every commissioner to work in partnership.”

Yet the “interchanged without limit” budget language rankled him.

“What did the governor really mean by this?” Ortiz said, climbing the stairs to the Assembly chamber. “I’m the chair of the Mental Health and Disabilities committees. What could this do to those agencies?

“So we just reject the governor’s recommendation on this,” he said. “When you don’t have details, you cannot just go with the flow.”

 

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The roots of the tug-of-war between the governor and the Legislature go back almost a century.

Before Gov. Al Smith took office, New York had no such thing as an executive budget proposal. The budget was written by a cabal of legislative staff who were among the few who understood its complicated inner workings—and kept a tight grip on them.

Gov. Franklin Delano Roosevelt fought the Legislature for more power, as did governors Hugh Carey and Mario Cuomo and George Pataki. Tension between branches of government is practically ingrained in the Romanesque architecture of the state Capitol building.

“The governor is pushing in accord with a long, unfolding trend,” said Gerald Benjamin, a political science professor at SUNY New Paltz. “But I think the Legislature fairly considers this beyond what’s reasonable.”

But Cuomo has informal, as well as formal, advantages that put the odds in his favor.

“The governor is acclaimed all over New York,” Benjamin said. “He’s a very high-status and highly visible person. He’s a potential president, so he draws power from that. Right now he’s very popular, so he draws power from that. He’s head of his political party. We’re not just talking about the formal powers, but the informal powers as well.”

Former Lt. Gov. Richard Ravitch, who knows as much about writing a New York budget as anyone, said he hadn’t seen Cuomo’s “interchanged without limit” language, but suspected it would pass legal muster.

“I’m too much of a half-assed lawyer to comment without seeing the language,” he said. “To the extent that a governor wants to move money from one agency to another within limits set by the budget, I don’t see anything wrong about that.”

 

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Yet Cuomo has already succeeded in persuading the Legislature to bolster his executive power in other ways. It granted his health commissioner authority to cut Medicaid dollars. It gave him more control over the reorganization of state agencies. And it has declined to challenge his ultimate trump card, in which he could cram controversial legislation into the budget and dare the Legislature to veto it.

The state Court of Appeals enshrined that authority in the 2004 Pataki v. Silver decision, tilting the playing field in Cuomo’s favor. The Legislature does not seem ready to take the issue back to court—yet.

Richard Brodsky, the former Assemblyman and regular City & State columnist, hinted that may change. He said Pataki v. Silver is a terrible blow to the Legislature as an independent branch of government.

“There are still many uncertainties about Pataki v. Silver, but the legal pathway to remedy this is complicated,” Brodsky said. “Many people are [working to revisit that case]. And they will come forward when they want.”

The opposition to Cuomo’s budget language seems rooted in a general fear of what Cuomo could do with it, rather than any sense of a particular threat. McEneny said lawmakers have been leery of growing executive power for almost a decade, but never acted to curb it—and should have.

“When Spitzer was in office, we had legislation that would have negated Silver v. Pataki, which would not allow nonlegislative things to go into the budget,” he said. “But Spitzer said he would never do that, and he never did.”

Former Gov. David Paterson “came in, and Paterson did do it, and he put us in a position of closing all the parks or else cutting the unions, the workers, or else. He used the Newt Gingrich approach, ‘My way or the highway—I’ll shut you down if you don’t do it.’ ”

McEneny added, “Where we were foolish is we should have gone ahead and addressed the structure, and not the personality.”

 

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There was more evidence on display last week that the Legislature might be newly willing to stand up to the governor. During Cuomo’s honeymoon a year ago, the first round of progress on long-stalled legislation prompted congratulatory “we’re not dysfunctional” backslapping among lawmakers.

This year, as the Legislature passed a massive package of bills on gambling, pension reforms, DNA databanks and redistricting, there was little self-congratulation.

Senate Democrats walked out of a vote on the redistricting bill, in a symbolic gesture of their anger. A handful of members of the Assembly minority caucuses, including Assemblyman Karim Camara, voted against the redistricting bill and an amendment to change the redistricting process.

“This is the wrong way to go,” Assemblywoman Crystal Peoples-Stokes said as she voted “No.”

While Cuomo can claim victory on the measures passed before the budget this year, it’s unclear how much more leverage he can use once the budget is finished. His signature on new district lines almost ensures the return of a Senate Republican majority that could frustrate progressive policies he tries to pass.

Already this year, Senate Republicans removed Cuomo’s proposed tenant protection unit and health insurance exchange from their one-house budget. They also permanently tabled the Reproductive Health Act, which Cuomo had promised to push for this session.

A spokesman for Cuomo said the creation of the tenant protection unit can be done outside of the budget process and that negotiations between the executive and the legislature over the health exchange were ongoing.

“The governor has always supported a woman’s right to choose and will fight for passage of the Reproductive Rights Act,” Vlasto added.

But Cuomo may also have used up his goodwill with Senate Democrats, who resisted criticizing him on issues like redistricting until he reneged on his promise to veto partisan district lines.

Last week Sen. Michael Gianaris, bleary-eyed with frustration, sat hunched over in the lobby outside the Senate chamber. He was asked if he was depressed.

“Yeah,” he said, throwing his hands up. “So much for change coming to Albany.”

With additional reporting by Andrew J. Hawkins