The Coronavirus and a “New” State Legislative Process
It’s impossible to quarrel with the New York State Senate and Assembly amending their rules last month to allow remote, electronic attendance and voting at legislative sessions during the current murderous pandemic. In-person sessions certainly would have qualified in size and character as the kinds of large gatherings that have been banned to prevent the lethal spread of the coronavirus. Politics is a touchy, feely business. In normal times, face-to-face interaction in both chambers among members and staff are close-in and personal. Many members are in demographic categories at high risk – older people with preexisting conditions. Four Assembly members and one Senator had already been infected before the rules were amended.
But actions taken during emergencies may have unexpected, unintended implications later on. Rules are put in place for reasons. Those just amended are designed to make sure that legislators show up for sessions, vote on the matters that come before each body, and are “present” when they vote.
Nineteenth century reformers searched for ways to encourage (or require) legislators to actually be in the chamber for sessions so that the necessary quorums could be assembled, rather than “play at ten pins, or sit at their hotels, or take rides… to Saratoga.” A more contemporary reform target was “empty seat voting.” Members could sign in and then be automatically recorded in the affirmative on routine, non-controversial matters without having to be physically present in the chamber. In one notorious case in 1988, John Dearie, an Assembly member from the Bronx, was signed in and recorded as a “yes” on eleven bills in Albany when he was actually at meetings downstate, 150 miles away. How did this happen?, he was asked, “a mystery to me,” Dearie replied.
The current Senate and Assembly rules arise from reforms made by the two houses in response to a now famous report on the New York State legislative process of New York University Law School’s Brennan Center, published in 2004. It found that “…76 of 94 (81%) [surveyed state legislative] chambers require attendance to cast a vote and adhere faithfully to that policy in practice.”
Before this year’s change, the reformed Senate rule (10 section 1a.) provided that: “Every Senator shall be present within the Senate Chamber during the sessions of the Senate, unless duly excused or necessarily prevented, and shall vote on each question for which a vote is required stated from the Chair unless excused by the Senate, or unless he or she has a direct personal or pecuniary interest in the event of such question.”
And the Assembly’s rule (5 Section 1a) said: “Attendance of members in the bar of the House during sessions of the House shall be continuously recorded electronically unless otherwise ordered by the Speaker.” According to that body’s Rule V.2.a. “Every member who shall be within the bar of the House when a question is stated from the Chair shall vote thereon, provided, however, no vote shall be recorded for any member who is not present within the bar of the House at the time of such vote.”
But even with members required to be present, the reformed rules still didn’t require that they actually vote on all measures. There are thousands of votes in every legislative session. Most are routine and non-controversial. Even in the smaller Senate, roll call votes take a significant amount of time. Long roll calls may be demanded by five members in the Senate and 15 in the Assembly. But most business is still done by the use of short roll calls. Under this procedure only the members who wish to vote “No” cast ballots. All others, except those absent, are automatically recorded in the affirmative.
The commute to Albany is a long trip for many legislators. After this experience with the convenience of emergency rules, slipping back to a general practice of not requiring members’ presence to have their votes recorded, at least on routine matters – that is, most votes -– may be quite seductive.
With this potential development in mind, the distinctions between the Senate and the Assembly rule changes for allowing remote attendance at sessions and voting by members in emergencies is important. The Assembly’s revisions are general in character; they apply “during a period of declared state or national state of emergency,” and there is no provision for expiration. The Senate temporary rule changes specifically address “The current declared state of national emergency relating to the coronavirus disease” and expires “upon the Temporary President’s declaration that a state of emergency no longer exists.” Moreover, the Senate provides that the exception “shall be in effect only for the duration of the remainder of the 2019-2020 Legislative Session.”
Matters rarely come to the floor of the New York State Senate or Assembly if there is any doubt about their likely passage. Deals are negotiated in advance. Floor debates serve far more to create a public record of the legislature’s intent, to guide courts’ interpretation if necessary, than to inform or change any minds in either chamber. Nonetheless, both houses cling to the notion that they are deliberative bodies, and many reformers still hope that this is what they will become. True deliberation is best accomplished when all those engaged are in the same room at the same time. Any exceptions should be for truly exceptional circumstances, so as to assure that it – the exception – does not become the rule. The Senate’s recent rule change is designed to protect hard won reforms in New York State’s legislative process; unfortunately, the Assembly’s is not.