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.

The Outremer: A New Perspective on the State Senate Republicans

From 1095 to 1099, in a remarkable military campaign known as the First Crusade, the Knights of Christian Europe reconquered the City of Jersualem and various surrounding territories from Muslims who had themselves conquered it a few hundred years prior. The country the Crusaders established was known officially as the Kingdom of Jerusalem (and a few related countries), and unofficially known either as the Kingdom of Heaven or as the “outremer,” a term which I read was based on the French word for “overseas.”

For better or worse or both, however, the achievements of the First Crusade were undone within a few generations, and less than a hundred years. In 1187, the City of Jerusalem was re-reconquered by Muslims under the leadership of Sultan Saladin. The rest of the outremer fell, city by city, over the next few centuries, interrupted by a few periods of minor expansion.

There were many factors at play in the Crusaders' ability to reconquer Jerusalem and then hold it for as long as they did, under very adverse conditions and against a numerically superior, militarily comparable, comparably motivated, and sophisticated enemy. There were also many factors at play in why they were unable to hold the outremer for even longer than they did.

One of the most important factors to all three conditions (reconquest, temporary holding out, and eventual loss), however, was the lack of unity among their enemies. The Crusaders attacked at the best possible moment for them, and the worst possible moment for the Islamic world, a moment of rare disunity and dissension in the Medieval Islamic world. The Crusaders then lost the outremer at a moment of rare unity and lack of dissension in the Medieval Islamic world. Sultan Saladin was a great unifier of his people.

The Republican Majority Conference in the New York State Senate finds itself in a position remarkably like that of the Christian outremer: Surrounded by enemies, plagued by a lack of ability or a lack of willingness to recruit competent personnel, and surviving in large part by a lack of unity among their enemies. When I read about how the Senate Minority Democratic Conference is unwilling to deal significantly with the Independent Democratic Conference in order to acquire the majority, I laughed out loud. This is exactly the kind of thinking that the Democrats do not need. It's as if the Democrats are taking political advice from Senate Majority Leader Dean Skelos, their enemy, and wondering why things aren't going well. 

The Democrats appear to have learned the wrong lesson from their failures with the “Four Amigos” or “Three Amigos” some years ago. The right lesson wasn't to not deal at all with dissenters. Rather, it was to deal on favorable, smart terms with stable people, not on unfavorable, stupid terms with unstable people. The Four Amigos were unstable.  Of the original four, only one is still in the Senate and he finds himself increasingly marginalized.  He is also the only one of the three to not have severe legal problems.  Dealing with them was always going to be problematic. Not dealing at all, but dealing with them in particular in the manner they were dealt with. Any idiot could have predicted trouble. The Independent Democratic Conference, by contrast, is stable, and can probably be dealt with.

Going back to the Crusaders....

Until their enemies unified, the outremer could not only continue on, but continue on behaving stupidly, and yet still survive. They made treaties, then broke them. They tried to expand when they should have solidified. They were plagued by a lack of competent personnel. So it was with the outremer, so it is with the Senate Republicans. Granted, the Senate Republicans aren't behaving as badly, but there's still a lot of room for improvement. And, given their unstable position, the Senate Republicans can't afford much wiggle room.

Disunity didn't last forever. So it was with the outremer, so it will be with the Senate Republicans. Sooner or later, their enemies will unify. When disunity among their enemies faded away, the outremer fell victim both to its enemies, and to themselves, to the logical and foreseeable consequences of their own actions.

As, likely, will the Senate Republicans.

Andrew Cuomo: The Good, the Bad, and the Ugly

Regular readers may recall my simultaneous admiration of and disquiet with New York State Governor Andrew Cuomo. I enthusiastically supported his run for Governor even as I was disquieted by him before the race actually began (he, in my estimation, improved himself considerably as time wore on), and I didn't just support him because he was better than Paladino (though he clearly was). Rather, I thought I saw in him just the right, if perverse, balance of pragmatism and idealism, and I thought I saw in him someone with his father's mind and Bill Clinton's hands. Or, at least, the potential for such.

Time has for the most part proven me right. There is very little doubt that Andrew Cuomo has been an amazing legislative governor. As an administrative governor there's positive and negative signs (more on the negative signs later). Finally, his approval ratings together with the glowing reviews of his natural enemies are together proof enough that he is a master of the politics of his day as well.

This isn't to say, however, that he's perfect. (Really, what politician can be. Show me a perfect politician and I'll show you a fraud or a fiction.) I've divided some of Andrew Cuomo's most-prominent characteristics into 3 analytically useful categories: good, bad, and ugly.

THE GOOD

There's little doubt that Andrew Cuomo is a great legislative Governor; great at getting the New York State Legislature to do things he finds pleasing. Two on-time budgets in a row (with no great brinksmanship dramas). Ethics reform . Gay marriage. Property tax cap. Tier VI retirement plan. Newly progressive tax code. This is just a partial list and, whether you agree with all or any of them, they are notable achievements individually, let alone taken all together. I haven't gone through and done some kind of formal analysis of his legislative track record. The big ticket items have themselves been enough that I really don't need to.

Hypothesis made, hypothesis tested, hypothesis proven. Andrew Cuomo is effective at getting his policies enacted into law. Governor Cuomo, agree with him or not, gets the job done.

This New York Times article on the passage of the gay marriage bill I feel best-displays the multi-faceted nature of Andrew Como's legislative genius. He temporarily turns natural enemies into temporary and limited allies, enslaves natural allies, and marginalizes or (metaphorically) kills allies who will not be enslaved. He knows when to back-stab, and when to preach. Note, for example, how Governor Cuomo sealed the deal on gay marriage with a little bit of the soaring rhetoric that his father was famous for; and note also how this rhetoric was delivered not at a podium for a crowd, but in a smoke-filled room, and not to an enthralled popular audience, but for the same Senate Republicans he knows that he is, sooner or later, going to have to (metaphorically) kill. And it worked.

Andrew Cuomo, judging by his approval ratings also seems to have a way of communicating that people respond to. While I can't think of how to construct an opinion poll or a focus group that would really answer these questions satisfactorily, I think Andrew Cuomo's communication method benefits mightily from this little-commented on characteristic: You can more or less believe what he says, if you listen to what he actually says and try to not read too much into it.

The press and other actors in the political system, ranging from the Manhattan Institute to New Jersey Governor Chris Christie to New York State Senator Reuben Diaz, paint Andrew Cuomo as a conservative because he is seen doing conservative things. He is criticized by Democrats, and liberal activists such as labor unions, for doing what the Wall Street Journal praised him for, departing from the Democratic orthodoxy. He is then criticized by the right for doing things the right does not approve. One excellent example is the way the Manhattan Institute referred to Tier VI as a missed opportunity; it didn't go far enough for them, you see. Both sides criticized Cuomo over the millionaires' tax, the left for letting the millionaires' tax expire and the right for raising the normal tax rate on high-income New Yorkers. (More on that in a little bit.)

The mistake the insiders make is to not listen to what Governor Cuomo actually says. He has not once said he was a conservative. Indeed, this quote from a New York Times piece is, I suggest, extremely telling:

Asked to describe his own beliefs during a news conference in Albany on Saturday, Mr. Cuomo was succinct. “I am a progressive Democrat who’s broke,” he said, adding: “I disagree with the concept that the only way to get better services is more money, more money, more money. “We’ve been spending a lot more money. We’re not getting better services.”

Who said Andrew Cuomo was a conservative? Surely not Andrew Cuomo. Indeed, Cuomo also specifically signaled that, were he President of the United States facing fiscal problems similar to that faced by President Obama, budget-cutting would not be his first choice of what to do:

“They [the federal government] have a different situation than the state has. The federal government has some capacities that a state doesn’t have, primarily the capacity to print money.”

Governor Cuomo's late 2011 legislative triumph with the New York State tax code was also subject to criticisms from both sides, with the left calling him Governor 1% for technically letting the millionaire's tax expire and the right calling him a traitor for allegedly going back on a promise to let the millionaires' tax expire. Lost in the shuffle was the fact that Cuomo never once, that I saw or read or heard, stated he was opposed to the idea of a more-progressive tax code. He said he was opposed to the millionaires' tax, which was a very particular surcharge which did, in fact, expire on schedule. The following quote from this piece found on the Capital Tonight blog is very telling:

“They have a much different situation than the state. From the state’s point of view, you raise taxes, you put yourself at a competitive disadvantage, right? People don’t have to be in New York, people can move to Connecticut, people can move to New Jersey, they can move to Pennsylvania. We’re literally hemoraghing [sic] people from our borders right now. So the state is in a fundamentally different position than the federal government.”

There's nothing in there that appears to suggest Andrew Cuomo was opposed to the millionaires' tax, or more-progressive taxation generally, on anything other than pragmatic grounds. A conservative he is not. He is a liberal who does not wish that liberal orientation to get in the way of achieving liberal ends.

Finally, as far as I can tell, the more-progressive tax rates worked into the New York State tax code now will not expire as the millionaires' tax did. I haven't reviewed the language but no account I've read suggests that the new Cuomo tax code will expire, though it is as I recall subject to formal review at some point. Since when did being progressive or liberal be defined by one's reliance on a temporary funding stream or one-shot? Andrew Cuomo did liberalism the right way: He made a permanent progressive change in the tax code. Feel free to call it a millionaires' tax or not tall it that according to your whim. I have the distinct impression that Andrew Cuomo doesn't much care what you call it.

Andrew Cuomo is, as demonstrated, clearly great at getting his way with the New York State Legislature, and at projecting a consistent image to which the public responds in a positive way. I withhold judgment on his ability to perform one of the other major jobs of a Governor of New York, public administration, until I have more concrete data (the Sage Commission, for example, is still in the middle of its work, the NY Performs effort is still in its infancy, and there's some good signs and some bad ones about both efforts), but early signs are (on balance) good.

For example while New York's unions may be grumbling about the content of the deals they made with the Cuomo administration they were in fact really quite good, especially relative to, say, Wisconsin. For another example, while the Sage Commission perhaps shows signs of lack of direction and being unsure what to do, I will take that over some of the overnight, more or less thoughtless government “reforms” of Goerge Pataki, the needlessly hard-charging but rudderless “steamroller” approach of Eliot Spitzer, and the demoralizing drift of David Paterson.

THE BAD

One aspect of Governor Cuomo's political persona that I think voters respond to well is his New York City, Italian-American, mafioso swagger. It seems to go well with his ability to bargain one moment, inspire the next, then slit your throat the next. It also seems to go well with his appeal to a well-reasoned variant on common sense.

However, that swagger does get him into trouble on occasion. While Cuomo handled well Eliot Spitzer's pointing out (correctly if hypocritically) that Andrew Cuomo is known as a dirty player behind the scenes (Cuomo issued an icy statement through a spokesman), he did not handle it as well when State Senator Diane Savino opposed the Tier VI retirement package. Cuomo responded as follows:

Subsequently asked about Sen. Diane Savino’s scolding of Megna (“While you may be confident that you could accomplish (Tier VI) talking amongst yourselves, you’re not going to get anywhere,” she told him at one point), Cuomo said the tenor of her comments suggested she was saying, “‘I don’t want to have to do it unless CSEA tells me it’s OK; I don’t want to have to do it unless PEF tells me it’s OK.”

“And then I would say back to the senator who scolded my budget director, ‘Who do you represent, the people of the state or the labor unions?’” Cuomo said. “That’s why, good thing she didn’t ask me that question.” He turned to Megna, sitting a few seats over on his right. “Did you say that? That was a good response for you yesterday.”

There was, in fact, an excellent reason Budget Director Megna did not respond that way. It was a stupid statement that needlessly questioned the integrity of one of the State Senators whose integrity is the least-able to be reasonably questioned.

At best Cuomo exaggerated. At worst he came far too close to comfort to the political style of Carl Paladino. Cuomo, perhaps, learned all too well from the surprising successes conservatives enjoyed against his old boss, President Bill Clinton, in large part through use of wildly exaggerated rhetoric. That might work, for a long while even, but it won't work forever and it's best when someone dumb does it. The public will, I think, buy dumb things done by a dumb guy but not dumb things done by a smart guy. And the Cuomo name alone ensures that no one will ever see Andrew Cuomo as dumb.

This kind of exaggerating is unworthy of Andrew Cuomo and I suggest strongly that he needs to cut it out. It has already led, I suggest, to a needlessly heavy handling of government employees, for example during the contract negotiations.

Cuomo's mafiaoso swagger has lead to other self-defeating actions and statements. See this piece from Crain's New York for some examples. Here's a few telling quotes from that piece.

“He is so unbelievably involved in almost everything,” said an Albany insider of Mr. Cuomo. “On one level, it's very impressive because he's a machine in the way he works. But it's also completely paralyzing and debilitating because [agencies] can't go to the bathroom without him giving the go-ahead.”

Excessive micro-managing is a bad enough tactic when attempting to run a bureaucracy as big and complex as New York State's. If Andrew Cuomo has his sights set higher, he may well discover that it's an even worse tactic in Washington than it is in Albany.

Also, the following was said by a now-former counsel of Governor Cuomo's:

“I don't care if you've done stupid for 20 years. We don't do stupid.”

That quote occurred in the context of a long-standing Labor Department interpretation of the law that the Cuomo Administration felt was out of step with the “New York is open for business slogan. I don't know about you, but, based on this piece, the earlier take on the law doesn't sound “stupid” to me. It sounds like a clash between reasonable interpretations of the law. Andrew Cuomo's potential micro-managing of the agencies potentially ruins his status as a competent public manager. Given that during the campaign he staked his reputation in-part on his achievements at the US Department of Housing and Urban Development, note the prominent role played by Cuomo's role at HUD on Cuomo's campaign Internet site it is a potential major issue for Cuomo to be a bad public manager in a way it might not have otherwise been.

As I hope is obvious from the above examples, the kinds of exaggerations that Andrew Cuomo seems prone are problematic in and of themselves but lead to other problems, such as an excessively heavy-handed management style. Perhaps Andrew Cuomo should take a lesson from himself and learn to deal with his own bureaucracy as he has with the Legislature? Which is to say with the knowledge a predecessor of his lacked that steamrollers tend to get stuck?

On a related note, Andrew Cuomo also seems to have bizarrely learned from Republicans that the private sector is inherently better than the public sector. This concerns me because the prejudice, and that's really what it is, is both untrue and uniquely resistant to evidence. The head of Cuomo's SAGE Commission, for example, is Antonio M. Perez, the current head of Eastman-Kodak, who in addition to his Sage duties is also in the middle of a major effort to reform and reorganize Eastman-Kodak.

One problem, though. I looked through business-related Internet sites and journals to see if I could find some indication that Mr. Perez is well-regarded and that his efforts are commonly considered likely to succeed. I found very few. If his job is to bring to New York State's bureaucracy what he brought to Eastman-Kodak, then I am afraid that this is a sign Andrew Cuomo has fallen prey to one of the private sector's worst fallacies: The belief that if something is said short and loud, that something must be true. The public sector, fighting for much more than just monetary value to the shareholders, cannot afford to hold to this mentality. New York deserves better, deserves real and thoughtful and deliberative government reforms, and Andrew Cuomo certainly seems capable of delivering that. But if he persists in modeling himself after the private sector, how long, I wonder, until New York State resembles Wall Street during the waning days of the Bush Presidency?

Some of these issues were touched on by Elizabeth Benjamin, in this piece, wherein Cuomo addressed some of the comparisons between himself and Governor Al Smith and the famous “power broker,” Robert Moses. This excerpt from Cuomo's remarks, apparently in response to a question asked by Benjamin, is potentially telling:

“The point of Al Smith and his ability to manage the government just on this point I thought was profound, especially coming in the door because in many ways that’s enemy number one. The misamangement the atrophy of state government that has been years in the making…that’s what Al Smith was all about.

…

People trusted Al Smith. They trusted the government’s capacity and integrity. There are ways for government to get things done without using a ramrod, obviously. Your characterization that Mr. Moses used a ramrod — other people would disagree with that characterization, but it was yours. But the consultation and the process shouldn’t be paralyzing. You know, government needs to work, society needs to be able to replace a bridge.”

What I see in this quote, ironically, leads right into “the ugly.”

THE UGLY

One of the better college-level introduction to US politics textbooks is The Democratic Debate, by Bruce Miroff, Todd Swanstrom, and Raymond Seidelman. In it, these authors downplay the traditional liberal/conservative divide and recast American political conflicts as being between different visions of democracy. “Popular democracy” stresses political participation by the masses, both an involved and informed electorate during the electoral process and an involved and informed consumer of services during the policy-making and governing processes. “Elite democracy” stresses the role of leaders. Under elite democracy, the people elect leaders to lead, then the people step out of the way. If the people do not like what those leaders do, the people will vote those leaders out next election cycle.

The authors of the textbook have an admitted bias toward popular democracy, but I for one do not. I think there's an excellent case to be made for elite democracy. After all, who wants to be involved in the gut-wrenching, soul-staining decisions that are part of day to day life in politics and government. Which fire houses will close. Which government employees will be laid off, and thus deprived of their livelihoods. Which interrogation tactics constitute torture, and which don't. The whole idea of electing leaders to do the people's work is that some of the people's work is both complex and nasty and ordinary people shouldn't have to do it.

Governor Cuomo is often accused of not maintaining an open enough government. His responses, delivered himself and through such illustrious surrogates as Assembly Speaker Sheldon Silver, often draw from notions of elite democracy. The following example, spoken by Sheldon Silver as reported by Elizabeth Benjamin here is, I think, very telling. Responding to allegations that the debate over the new tax code was not open enough, Silver stated:

“I think there has been open debate for a year and a half now on what we put forth in a millionaire’s tax. There have been no secrets about it. We have taken a strong position. The public has weighed in. Labor has weighed in. Editorial boards have weighed in. There has been as much public debate about our tax codes as there have ever been. I think what the great thing is about this is, unlike our colleagues in Washington, we came together with diverging views from different parties or the same party, we have to put New Yorkers back to work.”

In other words: The voices were heard and considered. When it came time for the actual decision to be made, the time for participation had passed and the time for leadership had begun. Debate over the particular measure to be considered isn't as important as is on the underlying issues.  Though this quote wasn't from Cuomo or one of his direct employees, it was from a prominent supporter of his and is along lines similar to those I've heard from Cuomo and his direct employees, and thus using the quote seemed fair.

Now I am, as stated, a genuine believer in elite democracy, so what's so ugly about this? What's so ugly to me about a fellow believer in elite democracy ascending to the Governorship of New York State? On one level this is elite democracy at its finest.

Well there's two answers to that question. The first is that, sometimes, a lack of openness can lead to an appearance of impropriety at minimum, actual impropriety at worst. Sunlight may not always be a great disinfectant, but the lack of it sure doesn't help, especially when it comes to those all-important perceptions. Note, for example, this editorial piece from the New York Times. Whether the Times is right in its implications about the Committee to Save New York and gaming/gambling interests is, for present purposes, less relevant than the fact that the Cuomo Administration has, through its lack of openness, walked into a trap.

The second answer is more complex. I feel that even an elite democracy should at least value openness, even if it doesn't always practice it. What I am afraid I feel from Andrew Cuomo when openness questions are asked is that he doesn't particularly value openness. And there is to my mind a difference between a Governor who values openness but is not afraid to not practice it, versus a Governor who does not value openness. Even in an elite-led democracy, I want those elites to value openness.

There's still time for Governor Cuomo to win me over on this issue I suppose. Despite myself he's won me over on many others.

But until that day, until he either changes his ways or convinces me that I was incorrect all along, I feel safe in labeling this strange characteristic of Andrew Cuomo's “ugly.”

CONCLUSIONS

So where does this all lead?  What does it all ad up to other than making a movie analogy?

The truth is that I don't know.  A lot depends on what happens next.

The Two Faces of Dean Skelos: Dean Skelos and the Minimum Wage

A few days back, Senate Majority Leader Dean Skelos had the following to say about a possible increase in New York State's minimum wage:

“I’m just telling you that we will not pass the speaker’s bill,” Skelos told reporters -- without getting more specific -- when asked whether he was ruling out any increase in the wage.

Skelos, though, said the GOP-controlled Senate’s focus was on creating jobs and he rejected Silver’s argument that an increase in the minimum wage was a “moral issue.”

“Our focus in terms of moral imperative is about creating jobs,” said Skelos, who's argued raising the minimum wage would cost the state jobs.

“To me the moral imperative is to have as many people working as possible,” Skelos added.

And thus we have the 2012 face of Dean Skelos: The minimum wage, in Skelos' estimation, costs jobs. Dean Skelos' 2012 face is that of a disciple of conservative Economists.

That the minimum wage (not just a particular instance of the wage's being raised, but the fact of the minimum wage itself) destroys jobs is pretty much an article of faith for conservative Economists and the conservative politicians whose policies they inform. You don't have to take my word for it, you can take that of Alan Greenspan, former Chairman of the Federal Reserve. Note the following exchange between Greenspan and then-Representative, now-Senator Bernie Sanders, and note how close Greenspasn's remarks are to Skelos'.

Greenspan: ... With respect to the minimum wage, the reason I object to the minimum wage is I think it destroys jobs. And I think the evidence on that, in my judgment, is overwhelming. Consequently, I am not in favor of cutting anybody's earnings or preventing them from rising, but I am against them losing their jobs because of artificial government intervention, which is essentially what the minimum wage is. So it is not an issue of whether, in fact, I'm for or against people getting more money. I am strongly in favor of real incomes rising, and, indeed, that's the central focus of where I would come out.

Sanders: Are you for abolishing the minimum wage?

Greenspan: I would say that if I had my choice, the answer is, of course.

Sanders: You would abolish the minimum wage?

Greenspan: Well, I would, yes. Because if what I say is accurate, then the minimum wage does no good to the level of ...

Sanders: And you would allow employers to pay workers today $2 an hour if the circumstances provided that?

Greenspan: The problem is that they will not be paying $2 an hour because they won't be able to get people.

Anyone who's worked, or tried to, in a difficult economy knows just how far off the mark Greenspan was, but that's neither here nor there. What's important for now is that Skelos' statements appear to echo those of Greenspan and economists of similar ilk.

It should first be noted that the evidence that the minimum wage costs jobs is, at best, questionable.

A great controversy in academic circles was caused by book Myth and Measurement,by Economists David Card and Alan Krueger.  In that book, the authors challenged their profession's faith regarding the minimum wage and very nearly found themselves excommunicated from their profession for it. (The really funny thing is that they didn't actually question the underlying economic logic. As I recall they agreed that a minimum wage law could cost jobs, but not at the paltry minimum wage levels typically found in the United States. The underlying economic logic of a minimum wage costing jobs, they argued, could kick in at much higher minimum wage levels.)

The controversy over that book, waged in the pages of Economists' professional journals, found the authors' fellow Economists contort themselves into econometric pretzels of increasingly complex shapes in order to prove their faith that the minimum wage always costs jobs.

But if Leader Skelos agrees with Greenspan, as his language suggests he does, then why not champion dumping the minimum wage in its entirety? Even more telling, if Leader Skelos feels this way about the minimum wage, why did he vote for New York State's 2004 minimum wage increase (NYS Laws of 2004, Chapter 747, override of Veto 10 of 2004). And why was his name proudly listed as a co-sponsor on the Senate's version of that bill, listed alphabetically between Senators Robach and Spano?

To vote for legislation is one thing; to co-sponsor it is quite another. The former can suggest mere agreement. The latter suggests true belief.

And thus we have the second face of Dean Skelos, the 2004 face, that of minimum wage supporter. I assume that Leader Skelos would not have co-sponsored the minimum wage increase in 2004 if he really thought it would cost jobs.

It may well be the case that Leader Skelos thinks 2012 is a different situation than 2004, and/or it may well be the case that Leader Skelos thinks something about Silver's bill in particular will cost jobs (perhaps the linking of the minimum wage to inflation?), whereas other potential increases won't cost jobs. But nothing in Skelos' words suggests either, at least so far. His language seems to be aimed at the very idea of a minimum wage. His actions in 2004, however, undermine that.

It could also be that Leader Skelos has just changed his mind. If so that's regretful, because he was correct in 2004, and is wrong now.

What will happen, I suspect, is that, either next year or the year after, an increase will be approved, but it won't be tied to the rate of inflation. And that's fine with me, at least for now, and judging by polls it'd also be fine with many other New Yorkers.

It pleases me that Leader Skelos left the door open to allowing a minimum wage increase, is letting is 2004 face show through. It's the right thing to do from a policy perspective, from a moral perspective, and at the end of the day even from a political perspective too. And I'm curious to see if Leader Skelos will vote for a minimum wage increase, or even co-sponsor it again, when it finally comes up, rather than merely allow it to the floor. Or perhaps he will allow it to come to the floor, then vote against it? Many outcomes are possible, depending upon which face Leader Skelos shows.

And, most of all, I'm curious to have a glimpse into what Leader Skelos really thinks about the minimum wage. I am not opposed to politicians going against their beliefs when practicality requires it. But I am opposed to politicians seeming curiously ambivalent about their own records.

On this issue, at least, Dean Skelos appears to have two faces. If he disagrees, I'd be curious to hear his reasoning.

Either way, I hope he shows his 2004 face when it really counts.

Howard Limbaugh

I read recently about how a limited advertiser boycott of Rush Limbaugh was costing some big radiocompany or other “millions.”

Lew Dickey, the CEO of Cumulus, was speaking to financial analysts about his companies' results. The boycott -- which saw scores of advertisers leave after Limbaugh called law student Sandra Fluke a "slut" and a "prostitute" because of her birth-control advocacy -- had "hit us pretty hard."

Dickey said that Cumulus had lost "a couple of million bucks in the first quarter and a couple of million bucks in quarter two." He claimed that the losses accounted for one percent of the 3.5 percent loss in revenue that Cumulus suffered over this period.

I wasn't any more impressed with this than I was sympathetic for Mr. Dickey. Indeed, I couldn't help but think back to a scene in the movie Private Parts, a biographical film about the sex-obsessed radio personality Howard Stern, based on Stern's own autobiographical book of the same title.

In the scene I refer to, Howard, then a local shock jock in the Washington, DC area, loses an advertiser, only to have a new advertiser immediately make up for the lost one. I'm sure we've all seen the impact of this incident on Howard Stren's career (apparently the scene in the film is based on fact). From there, Stern's popularity and influence only increased. He kicked down a door that Don Imus and others had only poked their heads through and at minimum helped to create the “Shock Jock” radio genre; a radio personality whose schtick is offending people.

From there, Stern became a major media player, making loads of money for himself and what advertisers remained. People may make fun of Stern for being on satellite radio now, but some of that ridicule is unfair (despite Pandora and other forms of Internet radio, satellite radio retains a large presence in the market). And at any rate, to this day Howard Stern, like Rush Limbaugh, remains a household name even in households that don't listen to him. The point is: Losing advertisers in Washington, DC didn't hurt Stern any more than losing advertisers now will hurt Rush Limbaugh. Indeed, this sentence closes that article linked to above:

For his part, Limbaugh has claimed that the boycott had a negligible impact, and that many of the advertisers who left his show have been clamoring to return.

After thinking about Howard Stern's early troubles, I thought of other incidents Rush Limbaugh has been involved in, other exploitative and shocking things he's said. Like that time when he was removed from being a Football announcer fordragging racial politics into a discussion of a certain player.  Or the time years ago on his television show wherein he referred to Chelsea Clinton as “the white housedog.”  (I had the misfortune of seeing that incident on television for myself.) Or that time on his radio show when he ridiculed a rape victim on the basis of the unusual circumstances of her assault. (No link, I heard this one on the radio, on Mr. Limbaugh's show.  I didn't take a note of the broadcast date because I foolishly didn't think I'd be writing about Rush Limbaugh over a decade later.)

Then, with all that in mind, I thought about the recent “slut” incident, and how many wondered if Rush Limbaugh's career would survive it. Of course it could. It can, it will, it has. And why? Because this is what Rush Limbaugh's audience wants, just as similar stunts are what Howard Stren's audience wants. Or Opie and Anthony's.

Rush Limbaugh, you see, is essentially Howard Stren with the politics/sex ratio flipped. I once saw Howard Stren on Jay Leno's Tonight Show some years back saying something much like this, accusing Limbaugh of stealing his act.

The problem isn't that Rush Limbaugh says offensive things. It's his job to, the same as it's Howard Stern's job.

The problem is that Stern knows what he is, and Limbaugh doesn't.

The problem is also that Limbaugh's legions of fans, self-described ditto-heads, want him to say offensive things; it isn't a reason they don't listen it's the reason they do listen.

The problem is that Limbaugh's job description exists in our society at all, not that he is particularly successful at it.

The problem, also, is that the mainstream media takes Rush Limbaugh seriously enough to listen, and to treat him as though he were a political commentator instead of what he really is. A shock jock who uses the word “liberal” the way Howard Stern uses the word “penis.”

Rush Limbaugh is a shock jock, only this and nothing more. It's time he was treated with the respect he deserves. When was the last time you saw the headline “Howard Stern Makes Offensive Remark?” A long time, because most people know that Howard Stern makes offensive remarks solely because they are offensive and he should not be taken seriously.

And it should be the same with Rush Limbaugh.

Leave Bruno Alone

Dear Federal Prosecutors:

I read more and more about the possibility of a federal government shutdown and all that would mean to the people, whether the people like to acknowledge it or not. I also read about our large federal budget deficit, the looming necessity to increase the federal debt ceiling, and, perhaps worst of all, the possibility that some Republicans will decide to oppose raising that ceiling, never-mind the catastrophe that would cause.

And in the midst of all this I also read that you, federal prosecutors, are looking to retry now-former New York State Senate Majority Leader Joseph L. Bruno. You have convicted him once on some charges, but lost other charges to an acquittal. His convictions were in effect overturned by the United States Supreme Court's understandable concerns about the law he was convicted under.

The federal government's damaged finances may appear unrelated to the ongoing efforts to put Joe Bruno in jail. But consider this undeniable fact: Prosecutions cost money. And for now we're only talking about the costs to the government and thus, indirectly, to the taxpayers. We are leaving aside the costs to middle class people who will be dragged into court, again, to testify.

Focusing only on the government's costs, as a taxpayer in the United States, I plead with you: Leave Joe Bruno alone. It's just not worth the money anymore.

I do not make this plea because I like Bruno, or because I consider the efforts you made against Bruno to have been entirely wasted.

While I began looking at this matter as a Bruno supporter, that eroded. Thanks in part to your efforts, to your previous semi-successful prosecution, I was able to see that Bruno surely was corrupt in some sense, despite my early support of him. You were clearly not prosecuting Joe Bruno for being Joe Bruno, as Roger Stone had suggested and as I'd initially feared. Even if Bruno's corruption didn't quite cross the line into illegality, he came close enough for me. Your prosecution thus highlighted Bruno's corruption and the way in which State law is lax enough that Bruno probably managed to not break any State laws while he was being corrupt. In other words, a federal prosecution highlighted the need for a better, more reasonable State law. While this isn't the primary purpose of a federal prosecution, at least I hope it is not, it is a valuable purpose, and I honor it.

By mostly failing, your previous prosecution also unintentionally highlighted that it was indeed possible to be a business consultant and a State Legislator at the same time. Bruno was, generally speaking, acquitted on charges related to consulting work he'd done that was in fact legitimate consulting work or at least appeared to be so. Where his problem came was treading in the gray area between legitimate consulting and influence peddling. A consultant-legislator who actually has consulted would appear to not be in much danger.

At least after Bruno was mostly acquitted, anyway.

Your prosecution, however, has already served the only good purposes it can. Please leave Bruno alone now. It is simply not worth your time and taxpayer money, my money, to keep going after him. Not in the age of a huge federal budget deficit, a looming government shutdown, and worst of all the distant but real possibility that some of Joe Bruno's fellow Republicans may decide to make the most irresponsible possible decision and block the increase of the debt ceiling. Joe Bruno hasn't been in power for years. He will never be in power again. It is just a waste of taxpayer money, a commodity in ever-shorter supply, to keep going after him.

It's time to let go. Spend my money going after other crimes. Make sure you convict Senator Carl Kruger. Go after lawyer-legislators, like John Sampson and Sheldon Silver, whose legal work may not be any more real than you accused Bruno's consulting work of being. Use the precious, dwindling resources the people give to you to investigate people currently in power. Not to keep up after people you've already gone after oncem haven't been in power for years, and likely won't ever be in power again..

There is simply no longer any money to spare for fishing expeditions, or for vendettas. And, honestly, a vendetta is what this is starting to look like.

Please stop and let it go. There just isn't any money for this anymore.

Sincerely,
The Albany Exile
(a taxpayer)

Honest Lawyers

Where, I wonder, are all the corrupt lawyers.

Of the various New York State politicians who have been credibly accused or convicted of various corruption charges of late, only one that I can think of, former State Senator Vincent Leibell, was a lawyer, and what he did was an old-fashioned mafia-style shakedown more than it was anything actually political.

Neither Carl Kruger nor William Boyland are lawyers. Nor Joe Bruno, nor Shirley Huntely, nor Vito Lopez, nor Shirley Huntley, nor Tony Seminerio. None of these people are described as lawyers in their official biographies, and they are not listed in the Office of Court Administration's attorney directory.

I suppose I might have missed another scandal involving a lawyer-legislator. There have been so many scandals, losing track is easy. Assuming I haven't, though, one could think that lawyer-legislators are probably the most honest and least corrupt. While that may be true, I don't think it's the reason comparatively few of them are either convicted of or credibly charged with crimes.

Many, but not all, of the allegedly corrupt legislators have been accused of variants on the same crime, which is using fake “consulting” firms to in essence funnel bribes collected for performing legislative work. In these arrangements, little or not actual consulting work is done. If I recall Joe Bruno's convictions correctly, he was acquitted when the jury thought he was doing real consulting work and convicted when they thought he wasn't. So it's not like there's no way to be a business consultant and a legislator at the same time. One just has to, you know, actually consult.

An old saying in Albany goes something like, “you don't bribe a legislator anymore, you hire his law firm.” It's only been pretty recently that we could add, “or you hire him as a business consultant.”

Assembly Speaker Sheldon Silver is “of counsel” at a prominent law firm, as is Senate Minority Leader John Sampson. Senate Majority Leader Dean Skelos also has a law firm, exactly what his title and role are I don't know. How many people with business before New York State, we wonder, have hired one, or all, of those firms. And is any real legal work done.

Has anyone looked? Maybe they have. But my distinct impression is that lawyers are potentially given a free pass for no-show work because they are lawyers.

I'm not saying legislators' law firms are hired for no-show work. I'm saying that, the way the rules are written and interpreted, they could easily be.

The rules are written, mostly, by lawyers, and are enforced by other lawyers who are called prosecutors and judges. Lawyers like to hide behind the concept of lawyer-client confidentiality. Other professionals, such as business consultants, security consultants, or private detectives, clearly do not deserve the same considerations that lawyers have, or at least so say the lawyers who write the rules. Lawyers, you see, can think in boxes. Therefore, surely a lawyer-legislator won't be influenced by, say, the Trial Lawyers' Association or one of the Koch Brothers' businesses hiring his firm for big legal fees.

But those businessmen. You have to watch out for them. Surely, they will be influenced by those big consulting fees.

I understand of course that lawyer-client confidentiality is important; but is it really any more important than consultant-client confidentiality, when it starts to rub against public trust? Does a legislator's bank account know the difference between a legal fee and a consulting fee?

There is simply no good reason to hold legal fees as more sacrosanct than consulting fees. Both can be used as a form of influence, and both probably are. There is no good reason to think that, in terms of influence peddling, a no-show legal job is any less dangerous or corrupt than a no-show business consulting job. We shouldn't allow a New York State Legislator to be more efficiently corrupt because he happened to go to law school as opposed to business school or accounting school.

There are, of course, several other signs that New York State doesn't take ethics seriously as a policy issue, but in a way this one is the most telling, and almost certainly the least-sung. In effect one profession is singled out. The legal profession is in essence excused from the kind of corruption that seems to be the most common these days. Not excused from committing it, I mean, but excused from being legally held accountable for it. In the strictest legal sense, lawyers can only be corrupt by going far out of their way to be so, like Vincent Leibell did.

Or so it seems.

Joe Bruno once stated that he'd pitched to Eliot Spitzer that ethics reform should include full disclosure of all outside income for legislators, including lawyer-legislators, but that Spitzer balked at the inclusion of lawyers.

New York must take ethics seriously if it is to bother proceeding at all. It needs to start with putting all outside income for legislators on an equal footing, if outside income is to be allowed at all. (And if it's not you need to at least double the legislators' legislative pay and tie it to the inflation rate.)

When I hear about a potential Moreland Act Commission to deal with the issue of ethics reform I get very nervous. A Moreland Act Commission is a blunt instrument by definition, and is beholden only to the Governor. But you know what? If such a Commission will take ethics seriously as an issue and have all options on the table, including ending the disparate treatment of lawyers and other professions?

Then I, for one, will take it.