Sunday, March 20, 2011

If Laws Were Sausages, We'd All Have Coronaries

Daniel L. Feldman and Gerald Benjamin. Tales from the Sausage Factory: Making Laws in New York State. New York: Excelsior Editors, State University of New York Press, 2010.

Author David Feldman was a member of the New York State Assembly from 1981 to 1998. He notes Otto von Bismark commented that “laws are like sausages. It’s better not to see them being made.” Feldman saw, and writes about the process (of making laws).

This book finds the legislative process as a slow and complicated process where even great ideas can years to gain acceptance and passage. The authors note that the legislature often finds it easier to take symbolic action over a more complicated and harder to obtain agreement on substantive actions. Indeed, the authors see symbolism acts as an essential part of how the legislature addresses the psychological need that the public desires for some sort of attention on a matter. Passing legislation requires legislators working with their peers and obtaining public approval of their ideas. Understanding insider legislative politics is important in getting bills passed, yet the authors note that proposals that are substantive and have strong merits do well in the insider politics. Outside interests have major influences on legislative success and failure. Legislators are advised to learn about the laws they amend, the legislative process, and to apply their values in how they work. This comes together in the “sausage factory” whose output is legislation.

The authors argue that bipartisan gerrymandering helped decrease the reputation of the New York legislature. In 1971, the Citizens Conference on State Legislatures ranked New York as having one of the four best legislatures. Gerrymandering separated legislators further away from responding to public opinion and more towards responding to political party leaders.

Traditionally, gerrymandering was designed to give Republicans a majority in the State Senate and Democrats a majority in the State Assembly. Obama carried New York in 2008 with 62% of the state vote which helped elect enough Democrats to the State Senate that they were a majority. This was their first Senate majority since the 1964 Lyndon Johnson landslide. The Democrats were diverse and four refused to support the leader of the others, Malcolm Smith. Of these four dissidents, one, Pedro Espada, was indicted for receiving a salary from a nonprofit that received state funds with his support. Another, Hiram Monserrate, was arrested and convicted of assaulting his girlfriend. He was later expelled from the State Senate.

Republicans courted Espada and Monserrate to regain political control of the Senate. Republican politician Republicans sought a new leadership election in hopes of regaining control of the Senate with the help of dissident Democratic Senators. Democrats moved to adjourn the Senate and 28 left. 30 Republicans and the four dissident Democrats remained. Those remaining elected Republican Senators as Senate President and Majority Leader. Two dissidents then rejoined the Democratic Caucus, creating a 31 to 31 tie. The Lieutenant Governor would have voted to break the time but the position was vacancy as Lt. Gov. David Patterson had become Governor when Elliot Spitzer resigned as Governor. When Governor Patterson called the Senate into special session, two presiders, one Democrat and one Republican, both presided and attempted to run the meetings simultaneously. Important legislature such as revenue grants to local governments, retaining sales taxes, and maintaining Mayoral control of New York city schools sat in the Senate bottleneck.

Governor Patterson appointed Richard Ravitch as Lieutenant Governor. This was a new procedure he Attorney General declared as unconstitutional. The Court of Appeals ruled 4-3 that Ravitch could serve as Lieutenant Governor but that he could only vote on procedures matters and not to break the tie for Senate control.

Monserrate switched back to the Democrats to become Majority Leader in a deal that made Democrat John Samson the Senate President instead of Malcolm Smith.

It is noted Tom Golisano donated $5 million to Democratic legislative candidates in 2008 while advocating for conservative tax and spending proposals.

The author David Feldman was elected to the Assembly with the support of most of the regular organization as well as reform Democrats. A faction of regular Democrat supported his primary opponent, who he defeated. After his first election, he faced little electoral opposition.

As a legislator, Feldman was active in community issues and constituent services. He worked to reduce long sentences for drug offenders and for gay rights, consumer protection laws, environmental protection laws, and for reducing the number of parking tickets issued, which he claims were excessive. He, from person experience, learned that many constituents paid parking fines only to discover a second computer that did not align with the computer keeping track of the payments then required these payments be made in order to register a car. He introduced and had a bill passed that made the Motor Vehicle Bureau reimburse and pay extra to those so affected. The city lobbied against the bill as it affected their revenues. Still, the author learned about fighting the good legislative fight. He realized, even in small ways, legislators could improve lives.

The authors observe that many legislators often tended to act in their own self-interest more so than in the public interest. Working for constituents helps the constituents yet it also helps the legislators get reelected.

Party affiliation was a major factor in determining legislative behavior. Legislators did not always act in their own self-interest. The authors observed that Assemblyman George Michaels voted his conscience in voting in favor of making abortion legal knowing, correctly as it turned out, that the vote would lead to his defeat.

Legislators are presented as voting on issues, in this book, on a cost-benefit analysis. More emotional issues may not follow this cost-benefit calculation. Yet in general, legislature value efficiency (which means different things to different people), security, liberty equality, and property. The public expects representation, fairness, and a right to dissent.

The values legislators have impact their work. They are concerned how their constituents feel about issues. Organized interest groups that influence public opinion can impact how legislators respond. An important outside influences that can sway public and legislative opinion is the media.

Legislators develop friendships with each other, much as people ordinarily do. These friendships can influence how they vote on issues as they may wish to avoid conflicts and agree with friends on issues important to their friends.

Legislators sometimes have to deal with conflicting values. Legislative leaders may threaten actions when a caucus member desires to vote against the party leadership line.

In New York, the Speaker usually designates a Speaker Pro Tempore to preside over the Assembly while the Speaker works the phones conducting actual business while listening to floor discussions in his office. Many discussions among legislators occurs in their party’s conference, or caucuses. Legislators ask about the legislation they are going to vote on, debate merits, and form floor strategies. The Speaker often decisions made, although “majority will” could sway the Speaker in another direction. Many final decisions were formed by “three men in a room”, usually the Governor, Assembly Speaker, and the Senate Majority Leader. The authors note that Conference decisions could influence the responses of their leader in the Room of Three.

Morality or lapses on morality have roles in legislative behavior. In New York, Democrats and Republicans tended to stay together in separate hotels: Democrats in the DeWitt Clinton Hotel and Republicans in the Ten Eych Hotel.

The authors observed most legislators were not dedicated in their legislative committee assignments and one avoided them all together.

New York, Pennsylvania, and New Jersey, as of 2004, were the only full time Senates that used a fast roll call. The legislative leaders give their vote and unless of member of that party indicates otherwise, all the members of that party are indicated as voting accordingly. The member need not be present in the room to vote. A slow roll call is sometimes called for political purposes to get individual votes recorded with their presence.

The legislative leadership has various means to kill a bill. Bills can be sent to committees where the committee chairs are instructed not to refer the bills out of committee. Bills that emerge from committees that leadership doesn’t want can be sent to the Rules Committee and the bills can be kept there from every emerging.

The Rules Committee seldom met yet reported bills consistently. The Rules Committee, in reality, was the Speaker acting as the Rules Committee Chair.

Feldman was a member of the Rules Committee. He confirms that it never met. It was the Speaker and the Speaker’s staff who determined which bills were reported from the Rules Committee.

The New York legislature allows for swift approval of legislation under necessity power due to timely emergencies. This means of approving bills became more routine. The New York courts struck down passage of a ban on selling cigarettes on the Internet through legislative emergency powers as the courts rules this was not a timely emergency.

Speaker Stanley Steingut changed a tradition. The old ways involved county Democratic leaders brining the legislators their county political machines elected according to the Speaker’s wishes. Steingut instead worked directly with the legislators, bypassing the county Democratic chairs. Steingut also allowed each Assembly member of both parties to have a district office. Steingut lost a primary in 1978. Stanley Fink was the next Speaker. Fink did not institute any major procedural changes.

The authors note that Stanley Fink, Speaker from 1978 to 1986, was a masterful politician whose leadership surpassed that of Governors. Fink was a part of Brooklyn Democratic Party leader Meade Esposito’s political organization. Fink opposed the death penalty yet let pro-death penalty bills pass, claiming it was a vote of legislators and personal beliefs while knowing the Governor would veto them

The next Speaker, Mel Miller, left office in 1991 due to a felony conviction over his legal practice. Miller was replaced as Speaker by Saul Weprin. Miller’s conviction, incidentally, was overturned on appeal.

Speaker Weprin was known for urging Democratic Assembly members to “stay on message”, to support the party line, and not to deviate from the party line. He centralized staff, diminished the influence of committee chairs. Key staff to Weprin were delegated more authority than most other staff ever had. This created resentment from members.

Sheldon Silver, a Democrat, became Speaker in 1994 after Weprin died. Silver consolidated more power, justifying it as necessary to fight both a Republican Governor and Republican majority Senate. The Speaker’s staff were instructed not to share information with other Democrats leaders and Democratic committee chairs.

Strong leaders clam their powers are necessary to achieve legislative successes. Yet the authors argue, in New York, the strong leadership had difficulties producing results. Gridlock and dysfunction often was the result.

It is noted that the Republican majority in the Senate and the Democratic majority in the Assembly were strong majorities in both chambers from 2002 to 2008. Sheldon Silver was Speaker and Joseph Bruno was Majority Leader until his resignation in 2008. Two strong leaders with strong control with different political philosophies led to much legislative gridlock.

The Assembly Rules Committee became public meetings with recorded votes as of 2005. This decentralized some of the Speaker’s powers.

Conference committees of members from both chambers exist to resolve disputes between the two chambers over specific legislation. These conference committees are chosen by and thus represent the position of the legislative leaders. Before 1995, there were no conference committees.

In 1978, the Assembly passed a rule where the sponsor of a bill could insist upon committee action on the bill. Committee chairs got around this by scheduling votes on large numbers of bills and convincing committee members to vote on bills as a group as to whether or not they were to be reported from or held in committee.

Committee chairs are hardly ever scrutinized by the press for keeping a bill in committee. Even though this action allows one person to kill a proposal, this inaction is seldom criticized by the press.

The authors note that legislative success sometimes involves responding properly to inside politics, knowing the goals of different parties involved on the issue, and getting to points where enough parties agree.

The authors observe that, in 1990, half of newly imprisoned inmates in New York were convicted of buying or having drugs. 72% of females incarcerated were for drugs. Most were addicts. Police officials stated that drug dealers were replaced by drug organizations within minutes of being arrested, as so many other addicts could quickly be recruited to become dealers.. Thus, huge increases in Corrections expenses were not denting the flow of drugs.

Feldman was often on the other side of battles with Sheldon Silver. When Silver became Speaker, Feldman’s career began diminishing in influencel He did find some influence when a new Govenor, George Pataki, concerning the issue of getting more drug users into treatment programs. A Drug Treatment Program, while technically run by the Corrections Deparmtent, was created as a place for nonviolent second time felony drung offenders to serve time.

Support diminished for the strong antidrug laws with long prison terms were adopted under Governor Nelson Rockefeller. Long prison terms did not affect recividism. Support for treatment alternatives grew. David Rockefeller was among those who came out against his late brother’s drug policies, as did a leading academician on the issue who before was an advocate of creating these policies, John DiIlulio. Over time, Speaker Silver came to support judicial discretion in drug cases and increasing drug treatment programs. Majority Leader Bruno agreed mandatory sentences on drug cases were unfair. A seven hour negotiation session led to incremental reform that reduce some drug penalties and enabled judges to sentence drug offenders to treatment programs. The District Attorneys Association fought the agreement. Governor Pataki did not fight hard for its passage. The issue emerged in District Attorney elections and a leading defender of strict drug laws was ousted in a campaign where this was a central issue. Legislation finally passed. Further legislation reducing sentences for drug offenses passed when Democrats gained influence in the Senate.

The authors observe there is value in good staff. Feldman especially valued staff that researched and found good issues which could be supported. Feldman credits key staff for helping get a sex offender registry law enacted. This process included being diplomatic with the Speaker who favored a different version of the proposal and getting the Speaker to consider and then approve the proposal.


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