Under New York’s Constitution, legislation approved by both the Senate and Assembly must be delivered to the governor for her approval before the end of the calendar year. Under those rules, the Chamber that approved the legislation first “controls” when the legislation is sent to the governor. The governor then has 10 business days to sign or veto the legislation. If the governor vetoes the legislation, the Legislature can override her action with two-thirds majority votes in each house.
Under those rules, technically one house could overwhelm the governor’s office by submitting hundreds of bills at one time and forcing the governor’s staff to work around the clock to review those approved bills. Under those circumstances big mistakes could be made. In order to avoid such a mess, there is an informal agreement between the executive and the Legislature to send legislatively-approved bills in batches. Those batches are requested by the governor’s office when they are ready to review the bills.
Once December gets underway, there are lots of bills whose fate hangs in the balance. Frequently, the governor’s office requests bills that they don’t like – but are publicly popular – during the holiday season and acts on them when few are paying attention.
Late last week, Governor Hochul announced her veto of legislation that would have expanded the definition of lobbying to include efforts to influence the state Senate’s deliberations over confirming gubernatorial appointees.
Under New York law, attempts to influence many state and local governmental decisions are considered lobbying if the advocates spend $5,000 or more in their overall efforts. If such advocacy is considered lobbying, those entities are required to report their activities to the state’s ethics agency, the Commission on Ethics and Lobbying in Government (COELIG). Under current law, efforts to influence legislation, legislative resolutions, executive orders, agency rules or regulations, government purchasing, or utility rates, are considered lobbying.
Thus, under New York law, lobbying to influence the appointment of a member of the state Board of Regents (which oversees education) is considered lobbying since the appointment is done through a joint resolution of the Senate and Assembly. However, attempts to influence the state Senate’s confirmation of gubernatorial appointees – such as membership of the Public Service Commission, or heads of agencies, or judicial appointments to the top court – are not considered lobbying, since none require the use of a resolution. Ironically, attempts to influence utility rates is lobbying, but attempts to influence the commissioners who set those rates are not.
These loopholes in the state’s lobbying law were thrown into stark relief in the recent fight over Governor Hochul’s nomination of a chief judge to oversee the state’s top court, the Court of Appeals.
As reported, lots of money was spent both in advancing and opposing the candidacy of Hochul’s pick. But because of the loophole, the exact spending remains a mystery.
Legislation was approved with bipartisan support by both the Senate (introduced by Senate Deputy Majority Leader Gianaris) and in the Assembly (introduced by Assemblymember McDonald who chairs the Governmental Operations Committee). The vote in the Senate was 46-16 and in the Assembly it passed unanimously. It was that legislation that the governor vetoed last week. Both houses appear to have the two-thirds votes to override the governor’s veto if they chose to do so.
The governor’s rationale for her veto was two-fold: she argued that the legislation would add new costs for oversight to the state’s ethics agency, and that the legislation was written to go into effect on January 1st of this year (2023), which would mean that those who did not report their advocacy on the chief judge pick would retroactively have to do so.
Both are pretty weak arguments. In terms of costs, it’s the advocates who would have to comply, the COELIG simply receives the information and then publishes it. The second complaint is trickier, in that it is true that those who spent money to influence the judicial nomination expected their efforts to remain secret and now it would become public.
Yet, doesn’t the public deserve to know that information? After all, a big bucks public campaign to swing a Senate vote for the state’s top judge is a big deal, the outcome of which would surely impact the public. Moreover, what’s the harm in reporting that spending?
So, now what? The sponsors will decide how they wish to proceed: override or re-pass the legislation next year. It is expected that there will be some activity in the area of lobbying and ethics reform since earlier this month the ethics agency has advanced its legislative recommendations.
While there are limits over how advocacy efforts should be disclosed, surely efforts to influence the state Senate’s consideration of gubernatorial appointments should be within the bounds of reporting. In her veto message, the governor cited her commitment to “transparency” in government. Let’s hope that one year from now, that commitment shows itself through a stronger lobbying reporting program.
Blair Horner is executive director of the New York Public Interest Research Group.
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