In Search of Messages of Necessity

Article III, Section 14 of the Constitution of New York State specifies that “[n]o bill shall be passed or become a law unless it shall have been printed and upon the desks of the members, in its final form, at least three calendar legislative days prior to its final passage.” This provision is known as the three-day rule and appears to have been intended to give members of the New York State Legislature time to read, digest, and more or less understand bills they were acting upon. (See Jeremy Creelan and Laura Moulton, The New York State Legislative Process: An Evaluation and Blueprint for Reform, 2004, also known as the Brennan Center Report, pages 5-6. Also see this 2006 article by The Albany Project.)

As a matter of tradition the State Legislature appears to have always taken (and certainly has in recent years taken) a liberal interpretation of the rule. A bill introduced by 11:59pm on May 3 (1 minute before midnight) may constitutionally be enacted by 12:01am (1 minute after midnight) on May 5, and still meet the three-day rule.

There is, however, an administrative mechanism whereby Albany can get around even the rather light and liberally interpreted restriction of the three-day rule. This seems to be most-often done when there's a real or perceived deadline looming. Sometimes, for example, New York has to enact legislation having a certain effect by a certain date to receive federal money, and agreement on the required legislation was difficult to achieve until the very last minute. (As everyone knows, in Albany sometimes nothing gets done until everything gets done.) Another example is the New York State Budget bills, which have the perceived deadline of April 1. And sometimes the Legislature just wants to leave town and isn't willing to wait three days.

As it does with many things in the Legislative process, the Constitution of New York State places this mechanism in the (presumed) capable hands of the Governor. 

No bill shall be passed or become a law unless it shall have been printed and upon the desks of the members, in its final form, at least three calendar legislative days prior to its final passage, unless the governor, or the acting governor, shall have certified, under his or her hand and the seal of the state, the facts which in his or her opinion necessitate an immediate vote thereon, in which case it must nevertheless be upon the desks of the members in final form, not necessarily printed, before its final passage. (Constitution of New York State, Article III, Section 14)

The Governor, in other words, has the power to allow the Legislature to entirely obviate the three-day rule. The formal message accompanying gubernatorial certification of the necessity for an immediate vote is commonly referred to in Albany as a “Message of Necessity” or a “Three-Day Message.”

From the language of the Constitution, it sounds like the Governor has to in the Message of Necessity present an argument for why the three-day rule should be obviated. Note that nothing in the Constitution indicates that gubernatorial support of the bill is required, just gubernatorial support for “an immediate vote” on that bill.

As an example of the language of a Message of Necessity, here I quote in its entirety the Message used to speed up the enactment of a same-sex marriage statute in 2011, under Governor Andrew Cuomo. The text of this particular Message of Necessity was widely disseminated on the Internet, but that's not the norm for these messages.

TO THE ASSEMBLY:

Pursuant to the provisions of Section 14 of Article III of the Constitution and by virtue of the authority conferred upon me, I do hereby certify to the necessity of the immediate vote on Assembly Bill Number 8354 entitled:

AN ACT to amend the domestic relations law, in relation to the ability to marry.”

The facts necessitating an immediate vote on the bill are as follows:

This bill would amend the domestic relations law to grant same-sex couples the long overdue right to enter into civil marriages in New York. The continued delay of the passage of this bill would deny over 50,000 same-sex couples in New York critical protections currently afforded to different-sex couples, including hospital visitation, inheritance and pension benefits.

Because the bill has not been on your desks in final form for three calendar legislative days, the Leader of your Honorable body has requested this message to permit the immediate consideration of this bill.

Given under my hand and the Privy Seal of the State at the Capitol in the City of Albany this fifteenth day of June in the year two thousand eleven.

BY THE GOVERNOR

Andrew Cuomo.

When a Message of Necessity is received by a house of the New York State Legislature, that house will vote on a motion to accept the Message. I have neither once witnessed nor once even heard of a single vote being cast against a motion to receive a Message of Necessity from a Governor. I suppose odds are it's happened at least once over the years.

Not all Messages of Necessity contain the degree of policy detail featured in the above-quoted Message from Governor Cuomo. Some actually appear to not contain even enough detail to meet the constitutional requirement. For example, in 1995, Governor George Pataki in a Message of Necessity for bill S. 5026-B, bluntly and unhelpfully wrote: “The facts necessitating an immediate vote on the bill are as follows: The bill enacts the engineers' and architects' good samaritan [sic] act,” and that was it. Of course, nothing about the mere title of the bill could possibly be an argument for the necessity of an immediate vote.

However, despite their frequent and regrettable lack of detail, at least under some Governors, the text of Messages of Necessity are sometimes rather important. One great example occurred in 2004, when the Empire State Wage Act (New York State Laws of 2004, Chapter 747), a bill to raise New York State's minimum wage (the last such a bill that was chaptered into law) was first granted a Message of Necessity by Governor Pataki, then later vetoed by him. Most press accounts from the time express surprise that a bill was first granted a Message of Necessity then vetoed, but looking at the text of the Message reveals that Governor Pataki sent an early signal that the bill might be vetoed: The Message stated that the measure was “subject to further review by the executive.” This language doesn't appear to be standard. Its use should have been, but wasn't, a warning sign that the bill's being signed wasn't a foregone conclusion, despite the granting of a message.

(Incidentally: The text of this Message wasn't anywhere in the Empire State Wage Act's bill jacket. I found it by coincidence in the transcript of the Assembly debate on initial passage of the bill.)

Indeed there's no consistent source for the texts of Message of Necessity. Unlike other documents, such as Veto Messages, Press Releases, Executive Orders, or the like, the texts of the Messages of Necessity are not found in the Legislative Digest or on the Legislature's Internet-based bill databases (commonly referred to as LRS, short for Legislative Retrieval System). Sometimes the texts of Messages of Necessity can be found in the Bill Jackets or Veto Jackets (archives maintained by the New York State Library/New York State Archives, some of which are available on the Internet and some of which need to be viewed physically) but not consistently. (If you are aware of a consistent source for the texts of these messages, by the way, please E-Mail me. No one I spoke to at the Capitol was so-aware.)

I had some occasion to read many Bill Jackets compiled under Governor Pataki of late, and most bills that benefited from a Message of Necessity that I had occasion to read did not have the text of the Message in the jacket. Of those I read, bill jackets for bills that were granted Messages of Necessity that contained the text of the message were actually in the distinct minority.

There is also no formal list in any publication I could find of bills that received a Message of Necessity. One can find out which bills had such a Message by going bill by bill on the LRS, and when the Press issues an analysis of the Messages that appears to be pretty much what they're doing. But surely, I thought, there has to be some such list has to be available someplace, publicly, if one looks hard enough. And surely the texts of the Messages must be available.

I first went to the Assembly's Public Information Office, a courteous, cheerful, and professional office which had helped me before. They claimed to not keep track.

I then went to the Senate Journal Clerk.  After a brief exchange which I interpreted as hostile, I was told to go to the Senate Press Office.  After a less-hostile but no-more fruitful exchange, the Senate Press Office told me to go to the Governor's Press Office. (By the way, Senate, it might be worthwhile considering having a Public Information Office of your own, modeled after the Assembly's.  If you have one, your own staff doesn't seem to be aware of it.)

At this point the project got away from me, and it was a few weeks before I managed to find time to get to Governor Cuomo's Press Office. They, rather politely, told me to go to the Governor's Legislative Relations Office, and gave me a room number in the New York State Capitol and directions to it. 

Without going into the further details of my search, a couple of offices later I wound up at what I think was Governor's Counsel's Office. They didn't have a list of bills that received Messages of Necessity, but they could generate it for me, they said. They maintained files and could generate a list from that. They had been nice enough that I didn't feel like pressing the issue. I had no wish to create work for someone else.  At least I knew now that such a list could be produced, and I was now confident that someone was keeping track of the messages. For now that would do, even if it appeared I might have to wait for the bill jackets to be released to have potential access to the all of the message texts.

It's fair to say that the use of Messages of Necessity is of no small amount of political controversy in New York State, but the nexus of controversy isn't over how they are used, so much as the fact that they exist at all. Messages of Necessity, the argument goes, are used to bypass the traditional deliberation process and enact measures without thorough review by the people or, indeed, even really by their elected representatives.

It is also fair to say that this argument dominated public feelings on Messages of Necessity for some years. While few in the system were willing to back away from the use of the Messages, no one was quite willing to defend their use either.

This changed somewhat in late Spring 2012, when a counter-argument emerged, led by Governor Andrew Cuomo and his aides. In a radio appearance, Cuomo aide Howard Glaser argued that the three-day rule was less about transparency than it was about providing lobbyists on a given issue with time to block the legislative process. The three-day rule was “kind of an early warning system” for the special interests, Glaser suggested. Meaningful public deliberation and public debate, this counter-argument runs, can take place over issues in general, not over the individual bills themselves, the latter of which it was the lobbyists and special interests who are primarily concerned over.

I have to wonder, though, if all this concern about the mere use of Messages of Necessity isn't a tad misplaced. Maybe the problem isn't the fact that Message of Necessity happen or don't happen at all, but the fact that based on my search they don't seem to happen in any kind of consistent manner, there's no consistent administrative procedure for their use or release, that records apparently aren't consistently kept, and that finding out even the basic facts of their use causes such drama.

Maybe the issuance of a Message of Necessity should be something more like a Veto. A list maintained and put on the Internet or on in the Legislative Digest, the texts of the Messages part of the public record.

When you think about it, sunlight maybe isn't so much as a disinfectant as it is, well, light. You may or may not like what's going on but you have a much better chance of knowing how you feel about something when you see can actually it.