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516 bills passed in nine days: Why Albany waits for a final flurry

ALBANY – On the final night of this year’s legislative session, a lawmaker outside the State Senate Chamber was overheard in a heated argument with casino lobbyists. One legislative staffer reported seeing no fewer than four similar “dust-ups” in the Capitol’s hallways that day.

Inside a legislation drafting office on the Capitol’s third floor, lawyers for the governor and legislative leaders argued over the final terms of a deal on an ethics law. The argument occurred hours after the “agreement” had been publicly announced, yet it was still hours before lawmakers would even see the bill they would approve not long before the sun rose.

And in a Capitol bathroom, an exhausted legislative staff member, sleep-deprived after several straight days and nights of negotiations, was throwing up.

Just another end of session in Albany.

Similar scenes occur at the end of most legislative sessions. Rank-and-file lawmakers are unable to tell exactly what was going on behind closed doors where the governor and legislative leaders cut deals.

Gov. Andrew M. Cuomo restricts his public appearances and, as per the unspoken blackout rules in Albany, top legislative leaders say nothing when they emerge from the governor’s second-floor suite of offices.

There are well-timed fundraisers, vending machines break, and the building’s humidity rises, bringing smells that only decades of caked-on tobacco residue can emit from its walls.

And then the flurry arrives: Bills rushed through the Senate and Assembly chambers for voting with little time for debate, much less the opportunity for anyone but their drafters to read them.

How crammed is it all?

Between Jan. 6, when the session started, and June 2, lawmakers gave final approval to 102 bills, including the series of bills that compose a more than $154 billion state budget last March and April. There were 50 session days during that period.

But during just nine days of sessions in the final flurry – from June 6 until the sun came up June 18 – legislators passed 516 bills.

Then there’s this: In the last days of the session, 143 new bills were introduced. Many were introduced as throw-away bills that sponsors knew would not see the light of day but that, in some cases, appeased either lobbyists or interest groups.

But 26 of those new, last-minute bills were approved on such substantive topics as expanding breast cancer screenings, mandating railroad crossing safety standards, restricting access to painkillers and more mandatory treatment for opioid addicts, relaxing Sunday morning alcohol beverage sales, legalizing daily fantasy sports and cracking down on ticket-reselling abuses.

Ignoring ‘Tully rule’

Meanwhile, Cuomo touted an ethics law change contained in a bill that would “bring more transparency, trust and faith in state government.”

That legislation was hastily introduced, and then hastily passed, more than seven hours after Cuomo and legislative leaders one Friday evening put out a news release praising the deal – but without all the details.

Does it have to be this way?

Is it a structural problem that Albany waits until the last days of the session to resolve so many major outstanding items? Or is it incompetence? Or is it just waiting until the last minute to finish a task?

Perhaps all of the above.

But there also might be another reason: The logjam benefits those who are able to wear down another side in a dispute. Those benefiting include government officials, lobbyists and leaders of special interests.

Are you pushing or pulling?

That’s a question that lobbyists are asked about whether they are lingering in the halls to advance a measure, or kill it.

“Just baby-sitting one last thing,” one lobbyist said on the last night of session.

To set your clocks here, the grumbling about “the process” is a signal that the session is winding down. For a time a week ago Friday, speculation spread through the halls that leaders’ talks had blown up and that somehow calmer heads prevailed so lawmakers were being sent home to return the following Monday to try again.

There was talk of the “Tully rule,” named after Sen. Michael J. Tully Jr., R-Flower Hill, who died in 1997 at age 64 at his Nassau County home after returning from an all-night session in Albany. Invoking the Tully rule seemed sensible enough in the Senate, where one member is 88, another was just back from a cancer operation and another is retiring to deal with a heart problem.

But as fast as that rumor spread, the go-all-night forces took over.

“Let’s end this. I don’t want to come back next week,” Assemblyman N. Nick Perry, D-Brooklyn, said to anyone who would hear him as he entered a Democratic members-only meeting that Thursday night.

The train was back on track, and all sides agreed on a plan: Vote until there’s no more voting to be done. Among the stumbling blocks: Dinner had not been fully planned, leaving the Senate and Assembly scrambling to find places in Albany to get food for hundreds of lawmakers and staff. Pizza, paid for by taxpayers, was the go-to order.

The idea of bill-jamming is hardly new. At a Constitutional Convention in 1846, New York State first turned to the idea of a three-day aging period for legislation. It was to be raised again at five subsequent gatherings of New Yorkers given the task of making changes to the State Constitution, according to a 2013 Albany Law Review article by Peter J. Galie and Christopher Bopst.

That included the 1938 Constitutional Convention in Albany that gave new powers to the governor to certify in a “message of necessity” that three days is too long to age a bill. It’s a vehicle that governors use to quickly push through controversial bills – think taxes, or spending, or any assortment of policy matters – before they become controversial.

Pressure to go along

In 1938, convention delegates agreed that future governors would use the process as an end run to bill aging – a process that gives a “pause” after bill introduction in order to let the public, media and interest groups consider its ramifications. Such claims have been used by courts over the years as a way to not get involved in litigation challenging violations of the three-day aging edict, said Galie, professor emeritus and former chairman of the political science department at Canisius College.

“It has no meaning whatsoever,” Galie said in an interview about ways to get around a bill’s aging process. “All states have something like it, but New York is the only one who gives the power to the governor.

“All it does is increase the power of the governor, and give them more reasons not to worry about the three-day rule. It exacerbates the problem.”

Galie termed the 1938 message-of-necessity end run as an act of “constitutional malpractice.”

In the last day of the session this year, Cuomo used messages of necessity on three bills: new ethics-related laws, a lead-testing program for schools and a “budget cleanup” bill. That last bill included hundreds of millions of spending beyond what was already approved in April’s budget.

The annual legislative session works like this: pomp and circumstance in the beginning. Policy and budget plans unveiled. Lull. Then budget passage. Then lull. Then final flurry in last two weeks to pass hundreds of local and statewide bills in categories ranging from mundane to sweeping.

“The most serious problems in connection with state legislation present themselves in what may be termed the ‘end-of-session rush.’ A large part of legislatures do the greater part of their work in the last few weeks, or even the last few days, of the session,” Walter F. Dodd wrote in his book “State Government.” It was published in 1922.

Dodd lamented the high number of “roll call votes” – 204 of them – on the last day of the New York Assembly session in 1914, and how legislative bodies can tap into internal rules to fast-track bills, or kill them, as sessions wind down.

Frank Mauro started as a Senate intern in Albany in 1969, eventually rising to the top Assembly fiscal staff post until the end of 1986. He recently retired as director of the Fiscal Policy Institute, a think tank whose benefactors include labor groups.

As a longtime player inside and outside government, Mauro essentially chalks up Albany’s end of session rush to human behavior. More precisely, Parkinson’s Law that, in essence, states that work expands to fill how long is allotted for it to be completed.

“You take the time available,” Mauro said of negotiations.

Thousands of players are in the mix – representing corporations, interest groups, state and local governments, lobbyists, lawmakers, staff – rallying to advance or kill pieces of legislation for some fiscal, geographic or economic cause.

“In the legislative process, hundreds, if not thousands, of different circles are involved in trying to work out agreements on virtually countless numbers of different issues, and those circles are all working against the same deadlines,” he said.

As seen in Albany again this year, some bills die, some advance on their own and some are coupled in “package deals that seemingly mix apples and oranges,” he said.

That was true June 17 when Cuomo, with a message of necessity, introduced his budget cleanup bill. It had been negotiated in secret with legislative leaders over the previous week, but was not made public until the final hours of the session. It contained provisions relating to farming, home care workers, New York City mayoral control of schools, state control for another year of the state’s big thoroughbred racetrack not-for-profit corporation, State University of New York funding, building codes, health research, foreclosed homes and a host of technical matters.

Lawmakers feel the pressure to go along at the end.

“It becomes like the final hour, and you’ve got to make up your mind one way or the other. It’s the nature of the beast and it’s probably never going to change,” said Frank Padavan, R-Queens, who served in the Senate from 1973 through 2010.

“No, it’s not a good thing, and you would hope things happen on merit and in an orderly fashion.”

Holdover from the ’70s

The Assembly was the last to close up shop, ending session shortly after 5 a.m. a week ago Saturday. Adjournment sine die – the final adjournment of a legislative session for the year – arrived.

Well, not quite, not in this reality. The Legislature has not really technically adjourned since the 1970s, the holdover of a Rockefeller-era dispute with the Legislature over the powers of the governor if the Legislature is formally adjourned.

The way they don’t formally adjourn, even with lawmakers back in their districts, is simple, precise and quick. A member of the Assembly and Senate, almost always ones from the Albany area, stops by the Capitol once a week or so and gavels in the session. A prayer is given by a local religious representative, or a moment of silence is taken. The Pledge of Allegiance is spoken.

And with no business before the desk, the “session” is then closed until the following week.