Who’s in charge of the state budget? Under New York’s Constitution, it’s primarily Gov. Cuomo. And who controls the writing of new laws? According to the Constitution, that’s the Legislature. But sometimes those responsibilities clash.
When it comes to writing laws that relate to specific budget items, the primary power again is in the hands of the chief executive. That’s what the state’s highest court, the Court of Appeals, said in a 2004 decision. Unfortunately, the court’s ruling in Pataki v. Assembly was so muddled that there are no clear guidelines for how far a governor may go in writing substantive statutory provisions into the fiscal plan.
This seemingly arcane legal issue may become one of the biggest New York political and policy stories over the next few weeks. News reports indicate Cuomo may use his extraordinary budget powers to drive negotiations on two of the most heated issues now pending in Albany.
The governor is calling for reforms to teacher evaluation and to the pension system for public employees. Most lawmakers prefer the status quo on both fronts.
Normally, the balance of power here would favor the Legislature: It’s always easier to stop a controversial action than to make something happen in Albany. But Cuomo can flip that balance by invoking the powers granted under the 2004 ruling. Such a step could come either in the budget he unveils today, or in amendments he may submit within 30 days.
The decision in Pataki v. Assembly invoked findings from New York’s 1915 Constitutional Convention (when the idea of an executive-led budget system first emerged) to conclude that the governor is the “constructor” or “author” of each year’s fiscal plan.
By contrast, the Legislature is a “critic” with power to reduce or delete appropriations, to add items that are then subject to the governor’s veto or to negotiate with the governor before approving his proposals.
Chief among the political icons who put this system in place was Al Smith, who had been speaker of the Assembly and chair of its Ways and Means Committee before serving as governor for eight years. Under the old budget system, Smith said, appropriation bills had been laden with “expense, logrolling and waste.”
The fiscal process that represents much of Smith’s legacy starts with the governor sending the Senate and Assembly two sets of proposed legislation. One batch itemizes the amounts to be appropriated for various programs. The second — known as Article VII bills, after the relevant section of the Constitution — provides statutory language for any revisions of law the governor seeks. The latter traditionally includes, for example, proposed changes in tax law or major restructuring of agencies and programs.
The Pataki v. Assembly case involved then-Gov. George Pataki’s budget proposals of 2001, which included a number of significant statutory changes in appropriations bills, rather than in Article VII measures.
The Legislature deleted what it considered unconstitutional language and passed the bills. Pataki sued — and the Court of Appeals found decisively in his favor, with five of seven judges agreeing he had not exceeded his constitutional authority.
But the court’s main decision was only a plurality ruling signed by three judges, with two others providing a concurring opinion; the divided court provided no guidance on the limits of executive power. A constitutional amendment may be needed to settle this fundamental question.
Cuomo’s first budget, presented a year ago, avoided difficulty in this area by keeping major statutory provisions out of the appropriation bills. Rather, the new governor relied on his impressive political capital and negotiating skills to lead lawmakers in directions they disliked — cutting education and Medicaid and enacting a property-tax cap.
As a Siena College poll released yesterday found, the governor remains quite popular — meaning lawmakers generally want to support him. And, in this legislative election year, they will be especially loathe to exercise their most powerful negotiating tool of delaying action until the governor pulls back on controversial proposals.
For the governor, that may make including controversial reforms in his appropriation bills especially attractive. But there is also something of a downside: Such new statutory language would remain in place only as long as the related appropriation, or no more than two years. Permanent changes in the state’s laws would still require affirmative approval of the Legislature.
That’s the balance Al Smith wanted. Nearly a century later, it’s still a good one.
Robert B. Ward is deputy director of SUNY-Albany’s Nelson A. Rockefeller Institute of Government.