By Gerald Benjamin
The brief dustup in the Judiciary Committee regarding the nomination of Jenny Rivera for the Court of Appeals is just the latest piece of evidence that Republicans, with their Independent Democrat coalition partners, are presiding in the Senate but not governing through it.
The Committee is comprised of 12 Republicans, 9 Democrats and 2 Independent Democrats; unlike the Senate as a whole, it has a Republican majority. The committee chair, John Bonacic, and some GOP members raised concerns about Rivera’s qualifications, and the absence of the usual informal consultation by the executive branch with the committee before the governor’s office submitted her name for the court.
However, the two Independent Democrats, Malcolm Smith and Diane Savino, supported the nomination. With one Republican absent (Ken LaValle), three of the GOP Senators (Kemp Hannon, Betty Little and Tom O’Mara) on the committee, under gubernatorial pressure, agreed to join the eleven Democrats to send Rivera’s name “without recommendation” to the full Senate.
Combined, the Democrats and Independent Democrats have a majority on the floor. Approval followed early this week.
Complete Republican Dependence: The Consequence of the Tkaczyk victory: What if, as had been expected, Republican George Amedore had won in the 46th district, which had been specially gerrymandered for him, and had become the 31st Republican elected to the Senate? With Simcha Felder, the Brooklyn Democrat who defected to their conference shortly after Election Day, the Republicans would then have had 32 seats, a bare majority in the chamber, but still a majority. Think about it: In this alternate universe, would the committee vote on the Jenny Rivera nomination have come out differently?
But Amedore lost. Democrat Cecilia Tkaczyk, a winner by 19 votes, was sworn in on January 23, 2013 as New York’s 63rd state Senator. This left the GOP, including Felder, with 31 seats. It also made their post-election coalition deal with the five-member Independent Democrat Conference not just desirable but indispensable for their continuation in power in the body they have run, with only a two-year hiatus, since 1965.
The IDC: One-Third of the Power: Democratic Senators Jeff Klein, David Valesky, David Carlucci and Diane Savino organized their breakaway caucus after the 2010 election. A fifth, Malcolm Smith, joined this November. There was a policy agenda, but the underlying issues were about performance and power: failed leadership during the Democrats’ brief 2008-2010 interlude in control of the Senate, and distress at intra-conference power sharing (with a dose of racial politics thrown into the mix, mitigated when Smith came along).
The Independent Democrats have about eight percent of the seats but, according to one index political scientists use, they control one-third of the power in organizing the Senate. They’ve used their collective influence to obtain a joint power sharing arrangement with the Republicans, committee chairmanships and a munificence of staff resources.
All Legislative Politics is Coalition Politics: Though there has been ample speculation about the implications of the new Senate coalition for the state’s governance, in these discussions a basic point has largely been overlooked: all legislative politics is coalition politics.
At the level of the individual race, whether in primaries or general elections, candidates seek to gather enough backing from individuals, groups and factions to produce a winning plurality. Liberal, conservative, middle-of-the-road—the character of the coalition is defined by what is needed to win in a particular constituency.
By denying party colleagues majority status the Independent Democrats invite retribution at the district level, perhaps through Senate Democrat Conference support of future primary challenges to break up those local coalitions. Though aggravating and a drain on resources, there appears to be little risk for individual Independent Democrats from such actions. Valesky, Klein, and Smith ran unopposed in 2012—Klein was even cross-endorsed by the GOP—and Savino and Carlucci won easily.
At the institutional level, the timing of coalition formation in legislatures is driven by the design of the political system, a constitutional matter, and prevailing rules for elections, set out in law. In the United States we generally use single-member districts, partisan elections and a plurality winner rule. Under these conditions, when the prize (like a single legislative seat) can’t be shared, the incentives are overwhelming to try to form winning coalitions before elections. The result is usually a two-party system and, therefore, an automatic partisan majority in each house of the legislature.
Third Parties and Pre-election coalitions: In New York we have an added wrinkle—rare in the United States—because we allow “third parties” to obtain and keep a line on the ballot if they gain 50,000 votes in a gubernatorial election. Even more important, we permit these parties to cross endorse candidates, and we count a candidate’s total vote on all lines to determine the plurality winner.
New York is now a dark blue state. Pre-election third-party endorsements, mainly from the Conservative party, provided the margin of victory for six Republicans elected to the state Senate in 2012. For many GOP state Senate candidates, when the pre-election cross-party element of the coalition-building process fails, formerly safe seats are at risk. Case in point: After 22-year-incumbent GOP Senator Steve Saland supported gay marriage in 2011, Neil DiCarlo opposed him in a Republican primary. DiCarlo lost, but retained the Conservative line. In the resultant three-way race Democrat Terry Gipson was the plurality winner.
Post-Election Coalitions in Parliamentary Systems: In contrast, structures and rules in parliamentary democracies create incentives for coalition-formation to occur after Election Day, not before. Israel, where national elections for the Knesset (the parliament) were recently held, uses no election districts. Voters vote for national party lists. Proportional representation is used to allocate seats. With these rules, even small parties can hope to gain the necessary votes nationwide to win a few seats. For them, pre-election coalition building makes no sense. The result is a multi-party system, with a high probability that no party will get a majority. Post-election coalition formation among parties is then required to form a government, with the bargaining not just about power-sharing, but also about policy priorities and control of day-to-day government operation in ministries. And if coalition members don’t stick together on critical votes of confidence after a bargain is reached, all suffer loss of power as a result of the government’s failure to cohere.
Analogies have been drawn too facilely between the post-election coalition in the New York State Senate and those of parliamentary democracies. In our separation of powers system, voters elect candidates, not parties. Creating distinct party programs is far less central to elections. The executive is directly elected and oversees government operations. Legislative majorities do not form governments, disciplined by the prospect of confidence votes and the loss of power if they do not stick together; they simply organize houses.
Joining to Preside, Not to Govern: The joining of the Republicans and Independent Democrats was the result of what Governor Malcolm Wilson was fond of calling a “fortuitous concatenation of circumstances.” Concerned entirely with institutional power and control, it required no agreement on a policy agenda. In fact, all the original Independent Democrats had left-of-center home district coalitions; all had Working Family Party support in 2012. So the organization of the Independent Democrat caucus in 2010 and its subsequent actions were not seen from the left as undermining a “progressive agenda,” as some regular Democrats have claimed.
Governor Andrew Cuomo took no apparent steps to encourage the Democrats to cohere in organizing the Senate. He said he did this out of respect for the Legislature’s prerogative to organize itself. Others speculated that he had had success and preferred working with the more disciplined Senate GOP than that body’s more fractious Democrats, whose brief interlude with governing power was problematic, to say the least. But maybe the governor simply understands that the current situation empowers him even further.
Certainly the governor is the big winner in the current circumstance, as—with the state fisc less troubled—he brings renewed attention to a liberal social agenda. For as the Rivera nomination outcome again illustrates, he is now the unchallenged agenda-setter. Assembly Speaker Sheldon Silver remains a resourceful independent power. However, he heads a Democrat conference that is generally in tune with a liberal social agenda, and in which a number of members have hopes for career advancement, perhaps by gubernatorial appointment. Meanwhile, their indispensable post-election coalition has left Senate Republicans bereft of capacity to keep matters from reaching a vote. And once these items are on the docket, there is a Senate Democrat majority for initiatives in such areas as gay rights, women’s rights, gun control, minimum wage increases, and judicial nominations.
The GOP: Hunker Down and Wait: As the recent backlash on the passage of New York’s “toughest in the nation” gun control legislation shows, every time the Senate Democrat majority prevails, those other coalitions, the district-based and third party coalitions of Republican Senators are threatened. The thinking: “They never allowed these bad things to happen before. Why now?” The best GOP answers: “They would have been worse if we were not partly in charge.” And “Bear with us; we’ll get through the next two years and, with your help, get things back to normal.”
After all, the Senate GOP designed the current districts in 2011 so that they would retain control. Elections in at least two were very close. It is reasonable for them to think that in a non-presidential year with much lower turnout, and no real competition for governor to bring Democrats out (even with a popular Andrew Cuomo at the head of the ticket), they might regain complete control. One or two party switches might also be anticipated; for example, there would likely be little risk at home for Simcha Felder to come all the way across the aisle.
As for the Independent Democrats, it’s all about the deal they might make, the inducements they might be offered, to return to the fold. Here the Governor as an agenda-setter turns out to be an unacknowledged (but never unintended) friend of the restoration of Democrat unity in the Senate. For every liberal social policy vote he pushes to the floor will result in a demonstration that there is in fact, if not in power, a Senate Democrat majority.
Professor Gerald Benjamin is associate vice president for regional engagement and director of the Center for Research, Regional Education and Outreach at SUNY New Paltz.
Tags: Andrew Cuomo, betty little, Cecilia Tkaczyk, David Carlucci, David Valesky, Dean Skelos, Diane Savino, george amedore, Gerald Benjamin, GOP, IDC, Independent Democratic Conference, Jeff Klein, Jenny Rivera, Judiciary Committee, Kemp Hannon, Ken LaValle, Knesset, Malcolm Smith, Malcolm Wilson, Neil DiCarlo, Republicans, simcha felder, state senate, Steve Saland, Tom O'Mara