By Bennett Liebman
Government Lawyer in Residence
Albany Law School
Governor Andrew Cuomo for the year 2016 has decided that he will not give his annual State of the State remarks when the legislature reconvenes on Wednesday, January 6, 2016. Instead, he has chosen to give a combined State of the State/executive budget address on Wednesday, January 13, 2016.
Last January, Governor Andrew Cuomo, following the death of his father, former Governor Mario Cuomo, on January 1, also decided not to deliver his annual State of the State remarks when the State legislature reconvened on Wednesday, January 7, 2015. Instead, he delivered his remarks on Wednesday, January 21, 2015, two weeks after the original time of the State of the State. At that time, he also combined both the State of the State and the annual budget addresses.
The question has arisen as to what legal constraints are in place that might limit the Governor’s ability to change the timing of his State of the State remarks and to combine the State of the State with the budget presentation. What precedents are there on the delivery of these remarks?
The Timing of the State of the State Address
In a 2015 article for the Government Law Center, I previously noted that there were no limitations on changing the timing of the State of the State address. “The legal issue is governed by Article 4, Section 3 of the State Constitution which provides that the governor ‘shall communicate by message to the legislature at every session the condition of the state, and recommend such matters to it as he shall judge expedient.’” In short, there was nothing in the Constitution governing the timing of the State of the State address, leaving the governor free to set the time for his State of the State address.
On its face, this provision states nothing about the timing of the communication. Thus, there is no Constitutional requirement governing the timing of the governor’s message. The governor is free to deliver this message at whatever time he or she might wish.
The Need for a State of the State Speech
The State Constitution does not even require that the governor deliver a State of the State speech to the legislature. All the Constitution requires is a “message.” This is not idle language. The State of the State requirement has largely been unchanged since the 1821 Constitutional Convention. At that Convention, delegate Peter Robert Livingston wanted to make sure that only a message and not a formal speech would be required. A message would not necessitate the legislature to convene in Albany. A message would not cost the State the time and the expense of the individual legislators.
Based on this non-requirement of a speech, New York governors for a century simply delivered written messages to the legislature. The speech element was not added until Governor Alfred Smith took office in 1923.
This basically tracked what was happening on the federal level, where no oral State of the Union message was delivered between the time of Thomas Jefferson’s presidency until Woodrow Wilson took office in 1913.
Smith’s 1923 remarks were the first time that a “Governor of this State has delivered his message in person.” In prior years, the message would be given by the governor’s secretary to the clerks of the individual houses who would read the message to the members. Smith claimed, “It will at least mean that the legislators will remain in their seats to hear it, as least as far as I am concerned, for I shall not skim through it as I have heard some clerks of the Assembly do.” It should be noted that the early 1920’s represented the beginning of major radio broadcasting across the nation, and it could be that the ability of a governor to deliver a speech directly to the people at home may have been a factor in the decision to deliver the State of the State in person.
Smith delivered his State of the State remarks orally to the legislature in 1923, 1924, 1925 and 1926. In his last two years as governor, Smith waived off the actual State of the State speech. In 1927, upon doctor’s orders, he chose not to deliver a State of the State speech. The 1928 message, with Smith a candidate for the presidency, was the longest message ever, encompassing 35,000 words, and Smith chose not to deliver it. Smith joked, “I wanted to go to New York Friday so I decided I would have to forego the reading of the message Wednesday.”
All governors since Smith have given their State of the State messages in person. The speeches have been broadcast, and governors have generally, unlike Governor Smith, kept their remarks to a more manageable time period.
The Constitutional Requirements for Budget Submission
Unlike the State of the State address, the State Constitution does provide some guidance for the time in which the governor is to submit the executive budget. In years not following a gubernatorial election, the budget is to be submitted before the second Tuesday following the first day of the legislative session. In 2016, that date would be January 19. In years following a gubernatorial election, the executive budget is to be introduced by February 1. This would, in theory, provide a newly elected governor with some extra time to prepare a budget. There is nothing in the Constitution, however, which precludes governors from submitting their executive budget before the dates provided in the Constitution. Thus, Governor Cuomo can appropriately deliver the executive budget (address?) on January 13, 2016 even though he has until January 19, 2016 to (submit?) the budget.
The Requirement of a Gubernatorial Budget Speech
There is no requirement whatsoever for the governor to deliver any speech or remarks in conjunction with the executive budget. The Constitution provides for the submission to the legislature of a “budget containing a complete plan of expenditures proposed to be made before the close of the ensuing fiscal year and all moneys and revenues to be available therefor.” There never has been anything resembling a speech requirement.
Nonetheless, certain gubernatorial budget traditions have developed over time. The first executive budget was submitted by Governor Franklin Roosevelt in 1929. At that time, Governor Roosevelt developed the so-called “budget school.” Before the budget was submitted, the Governor would have off-the-record briefings and question and answer sessions with the media on the budget. There would generally be two budget schools – one for correspondents and one for editorial writers. Any information gathered at the budget school would be held confidential until after the budget itself was released. So while there was no budget speech, there were gubernatorial media briefings on the budget.
The budget school approach was continued by Governor Herbert Lehman throughout his ten years as governor. The New York Times reported that the school gave “the Governor a chance to explain the budget and to give the newspapermen a chance to ask questions to clear up problems which may arise in their minds. It has generally been regarded as exceedingly helpful . . .”
Governor Thomas Dewey also continued the budget school in his early years in office. After his first term, he expanded upon the budget school and conducted a separate budget school for his fellow Republican members of the legislature.
Future governors continued to conduct budget schools, but the legislative school was expanded to include members of both parties. With three briefings, the briefing for the newspaper editors and editorial writers was moved to be held at night at the Executive Mansion. In fact on one occasion, Democratic Congressman Samuel Stratton criticized Governor Rockefeller for serving French (rather than New York State?) wine at the budget school held at the Executive Mansion.
Also, with the increase in the number of budget schools, there was no longer any need to place limitations on the news emanating from these schools. Instead, on the day that the budget was submitted, the governor would hold budget schools with the legislators, the Albany-based media correspondents, and the editors/editorial writers. The information garnered in these sessions was on the record.
In New York State, “governors usually began their presentation . . . with a performance of the speech and slide show before the statehouse press.” This was followed by a legislative briefing and ultimately by an evening briefing for the editors and editorial writers. So, for the first 60 plus years after the executive budget had been adopted in New York State, there was no gubernatorial budget speech. The governor gave a series of budget briefings.
This changed with Governor Pataki. He began to deliver a formal budget address in the large (Kitty Carlisle Hart?) theater in the Empire State Plaza in Albany. Instead of briefings and/or question and answer sessions, the Governor gave a detailed speech on the budget to an audience far larger than the audience in the Assembly Chamber, where the State of the State was given. Only with Governor Pataki did the notion of a budget speech actually begin.
So clearly Governor Andrew Cuomo is doing nothing remotely improper in combining the State of the State address with the gubernatorial budget speech. Neither speech is required by the State Constitution, and the budget speech itself is of a fairly recent vintage.
The unification of the speeches has both plusses and minuses for a governor. Instead of two significant opportunities for statewide and national publicity, the governor only gets one. On the other hand, the news coming out of a budget address is not always upbeat, and a governor can obscure any bad news in the budget by packaging it within the loftier aspirational goals of a State of the State speech. Also, the combined speech – with no provision for questioning the governor – makes sure that the governor’s budget is not subject to the same level of inquiry as in the budget school days of the past. The governor ends up with less media attention but at the same time less media scrutiny.
 Yancey Roy, “Cuomo to Combine Budget, State Of State Addresses,” Newsday, December 8, 2015; Kenneth Lovett, “Shel Plays It Cool, Guilty Silver Acting ‘Normal,’ Tells Pals He’ll Win Appeal,” New York Daily News, December 7, 2015.
 See Bennett Liebman, “Changing the Timing of the State of the State Address,” https://governmentreform.wordpress.com/2015/02/26/changing-the-timing-of-the-state-of-the-state-address/.
 Livingston subsequently served both as the Speaker of the State Assembly and the President Pro Tem of the State Senate.
 Robert Allan Carter, New York State Constitution: Sources of Legislative Intent (2nd edition), p. 35 (2001). See also Constitutional Convention of 1821, Reports of the Proceedings and Debates, p. 173.
 “Smith to Read First Message on Wednesday,” New York Herald Tribune, December 30, 1922.
 Associated Press, “Gov Smith Faces G.O.P. Majority,” Boston Globe, January 4, 1928.
 Theodore C. Wallen, “Smith to Give Nation Views In Message of 35,000 Words,” New York Herald Tribune, December 29, 1927.
 “Smith Feared Message Would Take Up 3 Days,” New York Herald Tribune, January 4, 1928.
 New York State Constitution, Article 7, Section 2.
 New York State Division of the Budget, The Executive Budget in New York State, p. 68 (1981).
 Id. “The contents of the budget are regarded as a secret in the interim between the school and the submission of the document to the Legislature, with no further speculation permitted.” “‘Budget School’ Planned,” New York Times, January 25, 1943.
 “Lehman Will Conduct State Budget School,” New York Times, January 19, 1940. See also “Lehman Bids Press to ‘Budget School,’” New York Times, January 25, 1940.
 “‘Budget School’ Planned,” supra at note 16; “Dewey Cut Likely in State Expenses,” New York Times, January 28, 1944. An explanation of the Dewey budget school briefing can be found at John Mooney, “Governor Dewey Briefs Reporters on His Annual Budget,” Albany Knickerbocker News, January 29, 1951.
 “Press Studies State Budget,” Albany Times Union, January 20, 1947; “School Lunch Funds Sought,” Amsterdam Evening Recorder, January 28, 1947.
 “Finger Lakes Wines Best–Stratton,” Interlaken Review, March 21, 1968.
 Dall W. Forsythe and Donald J. Boyd, Memos to the Governor: An Introduction to State Budgeting, p. 6, 2012 (3rd edition). The authors report that Governor Mario Cuomo spent more time in answering questions than on his formal presentation.
 See for example, “Week Ahead,” Rochester Democrat and Chronicle, January 15, 2006; Joseph Dolman, “Pataki School-Fund Plan Looks Like a Gamble,” Newsday, January 21, 2004.
 Governor Andrew Cuomo basically followed in Governor Pataki’s footsteps when in 2011 he started giving the State of the State address in the Empire State Plaza and not in the Assembly Chamber.