Toward Legislative Transparency: A Proposed Change to the New York State Constitution

By Anne Jeliff, Albany Government Law Review

The New York State legislature has become synonymous with inactivity and lack of transparency.[1]  Due to its role as host to this governing body, the city of Albany has seen its name suffer as well, having been labeled as “the capital of inertia,”[2] “Corruption Central,”[3] a town that “has. . .earned a special place” among the “pantheon of ethically challenged politicians,”[4] and a “culture” of “overall dysfunction.”[5]  Sadly, the city and its resident lawmakers have earned this reputation.  Albany has distinguished itself as one of the most inefficient and consistently corrupt seats of State government in the country.[6]

This situation can only be changed by an assertive step from both the public and lawmakers to provide greater accountability and set more definitive boundaries within the legislative process.  To achieve this goal, the New York State Constitution should be changed to provide for an amendment that will require the state legislature to hold open committee hearings on all proposed bills, and to publish committee reports on all bills that go to a vote in the chamber.  This requirement will allow the lawmakers the opportunity for the deliberation necessary to create well-crafted laws; it will give the public the chance to become acquainted with the contents of the proposed bills and provide their own feedback; and it will give the state courts the source of legislative history they need to correctly interpret ambiguous statutes.  Each of these outcomes is an intrinsic aspect of a well-functioning representative government, and once they are in place, will enlarge public confidence in the New York State legislature, increase the currently anemic level of transparency the New York lawmaking process now enjoys, and increase the effectiveness of the lawmaking process.

This paper first addresses the reason these proposed changes should be made by constitutional amendment rather than by alterations to the rules of the legislature.  It will also briefly discuss the opportunity New York State will soon have to enact them in this way.  It will then review the history and purpose of legislative committee hearings, and the statistics of these hearings held for bills passed in New York State, then show that publication of committee reports will help courts properly enforce laws once they are passed.

Why Constitutional Amendment?

The first question that must be addressed is why these changes should be implemented through amendments to the New York State constitution rather than through amendments to the rules and processes of the state legislature.  Indeed, this is not the first time these changes have been proposed, and the opportunity (and practicality) of achieving these ends through simple rule changes has been suggested more than once.[7]

The Brennan Center for Justice at New York University School of Law, for instance, first published a comprehensive report evaluating the New York State Legislature in 2004.[8]  In this report, the Brennan Center noted several much-needed legislative reforms that would be possible through the comparatively painless method of updating the existing rules, or alternatively, adopting new rules that would help streamline the legislative process by increasing transparency and efficiency.[9]

When first published, this report caused considerable discussion of state legislative reform issues both in the media and among legislators themselves.[10]  Some of the proposals were in fact implemented, and then touted by the government leaders as monumental changes worthy of universal acclaim.[11]  However, the enacted reforms were relatively minor and did little to address the underlying issues in Albany’s stagnant legislative climate.[12]

These changes were so unimpressive, in fact, that the Brennan Center issued an updated report in 2006, entitled “Unfinished Business: New York State Legislative Reform,” in which the Center once again outlined the genuinely necessary rule changes that had not yet been put in place.[13]  When progress toward these basic reforms still had not been achieved, the Center issued yet another updated report in 2008, and this one more frankly expressed frustration over the Albany climate with its title: “Still Broken: New York State Legislative Reform.”[14]

The Brennan Center has not been alone in touting these vital improvements.[15]  Other advocates have written to encourage voters and representatives alike to press toward this mark, but to no avail.[16]  The widespread identification of both the problems and the solutions, combined with the total lack of substantive change, has prompted commentators to point out that it is fundamentally contrary to human nature for law-makers to infringe on their own power by rewriting the rules that govern their actions.[17]

This is a hard point to ignore, especially in light of the recent corruption charges brought against prominent Albany legislators, merely the latest incidents in a long chapter of Albany scandals.[18]  It seems that far from championing the cause of an ethical transformation, state law-makers are actively benefiting from the status quo.[19]  The state legislature has had its chance to reform the legislative process, and has enjoyed the public interest and resolve on pertinent issues needed to back the changes, but the legislature has consistently failed to carry out this task.[20]

During these times of increasing economic and government uncertainty, the execution of these long-overdue reforms cannot be left to the whim of a self-interested body whose performance at this task to date can at best be described as “lip-service.”[21]  The legislature has demonstrated that it cannot be trusted to change its existing rules to ensure its own transparency and ethical oversight.[22]  This leaves the public no recourse other than to revise the constitution in order to include these essential reforms in the very document from which the legislature derives its authority.[23]  It is for these reasons that the suggested change should be enacted through a state constitutional amendment rather than through a series of legislative rule changes.

Opportunity for Constitutional Amendment

New York State’s constitution includes a provision mandating that voters periodically address the question of whether or not to hold a convention to “revise the constitution and amend the same.”[24]  This section was added during the 1846 constitutional convention, making New York one of fourteen States to hold this requirement.[25]  Although this is mandated only by a minority of the fifty states, it is based on broader notions that are generally held throughout the United States.  One of these notions is that it is good for the people to intermittently be able to change the terms of governance under which they live, so the government can keep pace with changing times and with the peoples’ needs.[26]  Another such notion is that voters must have the means at their disposal to make changes to the government without being at the mercy of the governing body to implement those changes, since those in power will often have strong incentives for allowing things to remain as they are.[27]  To this end, New York requires that the public vote on the formation of a state constitutional convention every twenty years, or roughly once every new voting generation.[28]

The question of whether or not to hold a constitutional convention most recently appeared on the ballot in 1997, and so will be up for vote again in 2017.[29]  If New York State citizens choose to call a state constitutional convention, they will have chosen what may be the only viable means the public has to set in motion a process which will ensure that much-needed state government reforms are finally realized.[30]

Committee Hearings and Reports

Legislative committee hearings are necessary for a truly representative government and are sorely lacking from the current Albany legislative scene.[31]  These hearings are needed because they augment four law-making functions.[32]  First, committee hearings allow the representatives to gather information and to gain expert opinion on both the subject matter of the bill and on the specific remedies proposed.[33]  Second, the hearings enable the committee members to propose changes to create the bill or propose amendments to it before it goes to the floor for a vote.[34]  Third, they allow the representatives to receive feedback about the bill, not only from their colleagues and subject matter experts, but also from their own constituents.[35]  Fourth, committee hearings allow the committees to oversee the administrative agencies that are under the committee’s jurisdiction and to ensure that these agencies are fulfilling their statutory function.[36]

No single legislator is capable of being “all things to all people”[37] and even the wisest and most knowledgeable representative will benefit from discussion of their proposed solutions with others who are focused on the same current problems.[38]  The benefits of these discussions are manifold.  Through committee hearings, the law-makers receive help in the necessary fact-gathering, as well as explanatory input from those more knowledgeable on the subject than they.[39]  But a primary and currently unrealized benefit of committee hearings is that, in allowing a new bill to be tested against the opposing theories and perspectives of those not involved in drafting it, the bill can be refined to avoid unnecessary pitfalls and unintended consequences that it might otherwise cause.[40]

The unexamined life might well not be worth living,[41] but the unexamined bill is almost certainly not worth passing; particularly since it carries with it the possibility of causing more problems than it solves, and could also contain inadvertent legal implications that run contrary to the drafters’ intentions.[42]  Committee hearings therefore play an important role in assisting the authors of a bill by gathering the information necessary to accomplish their legislative aim, as well as allowing the bill’s authors to hear alternative suggestions that might complement their legislation.[43]

Today in Albany, the majority of bills passed are never the subject of a committee hearing, or even of a debate between legislators.[44]  Consequently, bills that are passed receive only a cursory overview by either house and are often passed only a few days after being released from their respective committees.[45]

Several critics have also remarked on the strikingly frequent occurrence of a majority vote in the committees before the bills are released to the floor for a house vote.[46]  For instance, in its 2004 report, the Brennan Center noted that of the bills brought to a vote in the State Senate committees, ninety percent of were passed by unanimous vote.[47]  This figure dropped some by 2006 (to approximately eighty-seven percent), but by 2007 the numbers were back up again to an almost unanimous ninety-one percent vote record.[48]  These statistics are pointed out as an indicator of the control that committee chairpersons wield over the bills allowed to be brought up for a vote within the committee, and of the general inability of dissenting voices to make themselves heard.[49]

These unanimous votes are usually not reached by any extensive open deliberations within the committees.[50]  Committee hearings, when they are held, usually cover only very broad subject matters and rarely address specific aspects of proposed bills or the problems the bills seek to remedy.[51]  Furthermore, neither the State Senate nor the Assembly requires its committee members to actually read a bill before it is brought up for a vote, and those members who would care to read the bills for amendments have access to only one mark-up copy per committee.[52]

These factors combine to make any meaningful debate about a bill almost impossible and an undivided vote virtually guaranteed, since many representatives see attempts at dissent and discussion as futile.[53]  And because the committee votes are almost always unanimous, it is difficult for voters to determine where their representative actually stands on a given subject and to hold them accountable for promises he or she made while a candidate on the campaign trail.[54]

Nor do the committees often issue reports when the bill is voted to be released to the house floor.[55]  As of the publication of the 2008 Brennan Center Report, which included numbers up through the 2007 legislative year, the New York State legislature had released no substantive committee reports since 2003, in which year the State Assembly had issued only two substantive committee reports out of all the many pieces of legislation that were voted into law.[56]

To understand the import of these figures, one must first understand what committee reports are intended to do and how their lack harms the legislative process.  Committee reports are useful first in the house to help the legislators make an informed decision regarding their vote on a bill and, in the event the bill should be the subject of litigation, the reports are also useful to the courts as a source for understanding legislative intent when they are called upon to interpret the law.[57]  Without these reports, representatives are forced to go along with the majority vote for lack of better information, and courts are left without a reliable means for interpreting ambiguous or controversial laws.[58]

This, then, is the most pressing legislative problem we must solve, whose negative effects manifest themselves in at least three ways: the lack of meaningful committee discussion about the bill denies dissenting voices the opportunity to help shape the legislation that the committee drafts;[59] the regularity of unanimous votes denies citizens the means of understanding their representative and of holding them accountable to his or her campaign promises;[60] and the dearth of committee reports denies the courts the means necessary to responsibly and effectively interpret the laws that have been passed.[61]  These factors combine to make New York’s legislative process almost certain to produce flawed and imperfectly interpreted legislation.[62]  In fact, these practices have become so entrenched in Albany that they led one experienced New York legislator to comment that “[t]he only thing that ever changes in Albany are the faces.  The system stays intact.”[63]

The State of New York deserves better representation.  The very essence of a representative government is that the legislators voted into office have the freedom to give thoughtful consideration to the issues presented for their “Yea or Nea,” and can vote as they believe their constituents would wish, and as their own consciences demand.[64]  In a properly functioning representative government, the legislators are able to truly represent those who elected them and can be the people’s voice on current issues.[65]  But Albany is not functioning as a genuinely representative government today.[66]  To help correct this problem, the state constitution should be amended to require committees to conduct public hearings on the bills assigned to them and so create greater transparency in the lawmaking process and increase voter confidence in their government.


[1] See generally Seymour P. Lachman with Robert Polner, Three Men in a Room: The Inside Story of Power and Betrayal in an American Statehouse (2006).

[2] Albany, Capital of Inertia, N.Y. Daily News, Oct. 26, 2002, available at http://articles.nydailynews.com/2002-10-26/news/18201141_1_campaign-cash-new-yorkers-state-legislative-elections.

[3] Tom Precious, Albany No Stranger to Scandal, Buffalo News, Jan. 26, 2009, at A1.

[4] Sam Roberts, With Arrests of Legislators, Hard Questions About Power, Perks and Temptations, N.Y. Times, July 16, 2006, § 1, at 27.

[5] Id.

[6] See, e.g.,Precious, supra note 3.

[7] See, e.g., Jeremy M. Creelan & Laura M. Moulton, Brennan Center for Justice at New York University School of Law, The New York State Legislative Process: An evaluation and Blueprint for Reform 4 (2004) [hereinafter Brennan Center 2004 Report], available at http://brennan.3cdn.net/1f4d5e4fa546eaa9cd_fxm6iyde5.pdf; see also Lawrence Norden, David E. Pozen, & Bethany L. Foster, Brennan Center for Justice at New York University School of Law, Unfinished Business: New York State Legislative Reform 2006 Update 12 (2006) [hereinafter Brennan Center 2006 Report], available at http://brennan.3cdn.net/0961322f1132c4f8b4_u9m6ivo30.pdf ; see also Andrew Stengel, Lawrence Norden, & Laura Seago, Brennan Center for Justice at New York University School of Law, Still Broken: New York State Legislative Reform 2008 Update [hereinafter Brennan Center 2008 Report], available at http://brennan.3cdn.net/ec21bc2f8e70edb787_j9m6b0k88.pdf .

[8] Brennan Center 2004 Report, supra note 7.

[9] Id. at 4.

[10] See, e.g., To Fix a Broken System: A New Report Shows How Lawmakers Could Do It, All On Their Own, The Syracuse Post-Standard, July 25, 2004, at C2; see also Susan John, Challenging Albany: Legislative Reform, Rochester democrat & Chron., Nov. 28, 2004, at 23A.

[11] See, e.g.,Erin Duggan, Modest Advances Toward Reform, Times Union, Jan. 10, 2005, at A1.

[12] See Michael Rothfeld, Lawmakers Tout Reform on Day One, Newsday, Jan. 11, 2005, at A18.

[13] Brennan Center 2006 Report, supra note 7, at 6–31.

[14] Brennan Center 2008 Report, supra note 7.

[15] See, e.g.,Committee on State Affairs, Legislative Rules Reform, 63 The Rec. 178 (2008).

[16] See generally Eric Lane & Laura Seago, Albany’s Dysfunction Denies Due Process, 30 Pace L. Rev. 965 (2010).

[17] See Brian M. Kolb, New York’s Last, Best Hope for Real Reform: The Case for Convening a State Constitutional Convention, 4 Alb. Gov’t L. Rev. 601 (arguing that state lawmakers cannot be expected to enact the necessary reforms and that changes must be made to the state government process via a state constitutional convention).

[18] See, e.g.,Benjamin Weiser & Mosi Secret, Second Bribe Case for Lawmaker Just Acquitted, N.Y. Times, Nov. 30, 2011, at A1 (reporting that Assemblyman William Boyland is now facing a new bribery charge after having been acquitted on a separate bribery charge earlier this year); see, e.g.,Erik Kriss, Pedro $uper (Super) Payout to Staff, N.Y. Post, Aug. 6, 2011, at 2 (reporting that former State Senator Pedro Espada and Senator Carl Kruger are both facing criminal charges for corruption).  The frequency with which fraud and abuse is uncovered in the State Capitol has been commented on several times of late.  See, e.g.,Clyde Haberman, From ‘Excelsior’ to ‘Where Is Mine?’, City Room Blog, N.Y. Times, Nov. 14, 2011, http://cityroom.blogs.nytimes.com/2011/11/14/from-excelsior-to-where-is-mine/ (listing some of the New York lawmakers most recently convicted on this type of charge).  This is not a new complaint, however.  Government positions across the State have long been home to illegal activities.  See, e.g., Howard Kurtz, FBI Sting Nets 44 in New York; Kickbacks Alleged; Municipal Officials Throughout the State Charged with Conduct Called ‘A Way of Life’, Wash. Post, Aug. 12, 1987, at A4.

[19] See Joseph Spector, Charges Against Powerful Brooklyn Lawmakers Renew Calls for Ethics Reform, Ithaca J., Mar. 11, 2011; see also Cara Matthews, Number of Lawmakers Leaving Albany Amid Scandal Grows, Poughkeepsie J., Feb. 15, 2011, at 1A.

[20] See, e.g.,Bill Hammond, Your Outcries, Their Deaf Ears, Daily News, May 24, 2011, at 27.

[21] Editorial, See Still a Sewer: Latest Arrests Once Again Show Albany’s Dire Need for Reform, Buffalo News, Mar. 16, 2011, at A6.

[22] See id.

[23] See Kolb, supra note 17.

[24] N.Y. Const. art. XIX, § 2.

[25] See id.  The other states with this constitutional provision are Alaska, Connecticut, Hawaii, Illinois, Iowa, Maryland, Michigan, Missouri, Montana, New Hampshire, Ohio, Oklahoma, and Rhode Island.  See Janice C. May, State Constitutions and Constitutional Revisions, in The Book of the States 1992–93 2, 4 (1992); see also, State-by-State List of Initiative and Referendum Provisions, Initiative & Referendum Institute, http://www.iandrinstitute.org/statewide_i%26r.htm (last visited Dec. 8, 2011).

[26] See Gerald Benjamin, The Mandatory Constitutional Convention Question Referendum: The New York Experience in National Context, 65 Alb. L. Rev. 1017, 1019 (2002).

[27] Id.

[28] N.Y. Const. art. XIX, § 2.

[29] See id.; see also Nicholas Confessore, As Voter Disgust with Albany Rises, So Do Calls for a New Constitution, N.Y. Times, Aug. 23, 2009, at A17.

[30] See Kolb, supra note 17.

[31] See Lane & Seago, supra note 16, at 972–73.

[32] See Brennan Center 2004 Report, supra note 7, at 7.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] I Corinthians 9:22 (English Standard).

[38] See Brennan Center 2004 Report, supra note 7, at 8.

[39] See Lane & Seago, supra note 16, at 972.

[40] See id.

[41] Plato, Apology at 38A (in which Plato recounts the trial and last days of Socrates, the philosopher who originally spoke these words).

[42] See Brennan Center 2004 Report, supra note 7, at 47–49, 51–52; see also Brennan Center 2006 Report, supra note 7, at 19–20; see also Brennan Center 2008 Report, supra note 7, at 17, 19.

[43] See, e.g., Brennan Center 2004 Report, supra note 7, at 46–47.

[44] See Brennan Center 2006 Report, supra note 7, at 12 (noting that for the previous legislative year almost no committee hearings were held on any specific legislation); see also Brennan Center 2008 Report, supra note 7, at 1–2, 4–6 (noting that practices had not changed by 2008, and that legislative committees still hold almost no substantive hearings on specific proposed bills).

[45] See Committee on State Affairs, supra note 15, at 193.

[46] See, e.g., Brennan Center 2008 Report, supra note 7, at 10.

[47] Brennan Center 2004 Report, supra note 7, at 6.  See also id. at 19 (showing the breakdown of number for both the Assembly and the State senate for bills passed unanimously compared to the number of those passed with any dissent).

[48] Brennan Center 2008 Report, supra note 7, at 10.  Of the 242 State Senate votes in 2007, 220 of them were unanimous.  But these numbers compare favorably with those of the Assembly, where the committees saw only seventy-six ‘no’ votes cast out of 8,457, and only 144 dissenting voices of 5,611 votes cast in 2007.  Id.

[49] Id.

[50] Id. at 3.

[51] Lane & Seago, supra note 16, at 974–75.

[52] Id.

[53] Id. at 975–76.

[54] Id. at 979.

[55] Id. at 4.

[56] Id. at 11.

[57] 2A Norman J. Singer, Sutherland Statutory Construction § 48:13 (7th ed.  2007).

[58] Lane & Seago, supra note 16, at 979.

[59] Committee on State Affairs, supra, note 15, at 192–93; Lane & Seago, supra note 16, at 986–87.

[60] Lane & Seago, supra note 16, at 978–79.

[61] Id. at 979–80, 994–95.

[62] Id. at 987.

[63] Azi Paybarah, News Flash: Albany Never Changes, N.Y. Observer, Apr. 9, 2007, available at http://www.observer.com/2007/04/news-flash-albany-never-changes/.

[64] Lane & Seago, supra note 16, at 969–70.

[65] Id.

[66] Id. at 972–73.

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