Share This Article
The energy spent on arguments about ethics reform in Albany is infinitely greater than its importance or impact. It’s not that ethics reform isn’t needed: There are sensible changes in law that might improve the ethical climate and they’re worth doing. It’s that there are institutional failures in state government that are infinitely more important, infinitely more impactful on the lives of our citizens and communities and which receive almost no public attention.
The key reform here is reform of the state budget process. The vast majority of the things that matter to the public have always been contained in the budget. We used to have a traditional process of gubernatorial budget proposal and amendment and enactment by the legislature. That has been swept away. What we have now is a system that Vladimir Putin or Xi Jingpin would recognize and approve. The governor is a budget dictator. What we need is a return to American democratic values where power is shared and limited. We would get better government, better policies and better lives.
Textbooks teach that budgets are passed when the governor proposes and the legislature considers and acts. It may reject, approve or amend the governor’s proposal. Not in New York. We now have a system in which the legislature cannot amend or reject proposals made by the governor, if he puts them in his proposed budget.
The deeper explanation is a little technical, but worth understanding. The state budget contains two kind of laws. The first is called an “appropriation.” It is an authorization by the legislature allowing the governor to spend money. No appropriation, no spending. For example, a $10 million appropriation is enacted to improve state roads and bridges. The legislature has limited power to amend an appropriation, as a way to check excessive spending.
Accompanying the appropriation bill is a second proposal which sets the policy and purposes for the appropriation. The legislature, unlike an appropriation bill, can adopt, reject or amend the policy bill any way it wants. In our case this is a law identifying which bridges and roads should be fixed with the $10 million. Traditionally, the governor and legislature would negotiate the list of roads and bridges. If the legislature couldn’t reach agreement with the governor it would pass a bill, the governor would veto or not, the legislature would override or not. Either way the result was a budget with both branches having power over the result. And so a state budget was passed.
About 20 years ago, when George Pataki was governor, that traditional balance of power was torn out by the roots. Instead of sending an appropriation bill and a policy bill, Pataki combined them into a single appropriation bill that included policy language. One bill that appropriated $10 million for bridges and roads and spent every penny on, for example, the Tappan Zee Bridge. Because there was no longer a separate policy bill, Pataki argued, the legislature couldn’t amend the bill and add, for example, the Queensboro Bridge. By that simple masterstroke the constitutional balance of power was ended and the governor became a budget dictator.
In 2004 the State Court of Appeals approved this new system in a case called Pataki v. Silver. It said, “what the governor sees fit to include in an appropriation bill is properly placed there and incapable of amendment by the legislature.” Say what? Again, “the legislature will be effectively precluded from proposing or influencing policies affecting state-funded programs for which the governor has proposed an appropriation.”
This has profoundly affected every budget since. The legislature is now a beggar, a whining supplicant reduced to asking the governor to please, change your mind, be nice, don’t insist on your power.
This is an un-American, dictatorial disaster. American democracy is predicated on a separation of powers, checks and balances and limitations on the ability of one branch or one person to control government. In New York we have tossed out the vital principles that elevate and protect us. And almost nobody knows.
This has practical effects on things like school aid, economic development projects, mass transit and everything that matters in the lives of the people. It has a practical effect on the function of the legislature, which is reduced in power and unable to perform its historical constitutional function.
There are remedies of varying complexity, statutory, constitutional and judicial. But unless and until we return to the guiding principles of our democracy, we will suffer in economic and policy terms, and eventually, by the erosion of our fundamental values.
We end where we began. There’s plenty of things to worry about, ethics included, and a need for action on all of them. But without a reasoned and careful reform of the budget process they will be fodder for headlines and soundbites, and not much more.
Richard Brodsky is a former member of the New York State Assembly.
