There has been a lot of talk in recent days of coalition governments and power sharing in the state Senate and how that might actually work in practice.
Independent Democratic Conference head Jeff Klein admits there would have to be changes to the Senate rules in order to achieve his three conference plan, and he reportedly has already spoken to both the Democrats and the Republicans about making that happen.
And then in this morning’s Times Union, Jimmy Vielkind wrote the following:
“It’s still unclear who would be elected the Senate’s ‘temporary president,’ who under the body’s traditional operating rules wields ultimate authority.
Klein has said he would not vote for a Republican. It’s conceivable that he wouldn’t have to: If the chamber rules were properly redrafted, the titular position could be neutered and power vested in conference leaders, or co-leaders — or whatever semantic agreement would stick.”
This is all getting very confusing. Let’s review:
There are a number of top leadership posts in the Senate. Temporary president. Majority Leader. Minority Leader. Conference Leader.
Traditionally, the temporary president – or president pro tem if you prefer – and majority leader titles are held by the same person. That’s how it was under Joe Bruno. That’s how it is now under Dean Skelos.
At various times, however, these positions have been split. During the Senate coup, for example, Pedro Espada Jr. was first given the president title by the Republicans as a reward for his defection from the Democrats and then shifted to the post of majority leader as a reward for returning to the Democratic fold.
When Espada came back to the Democratic conference, Sen. Malcolm Smith regained his title as Senate president and appointed Espada majority leader so his fellow Democrats wouldn’t have to take the politically toxic vote readmitting the former traitor to their caucus. But it was also understood that Smith was only a paper tiger. The real leader of the Democrats was John Sampson, who became the conference leader.
Since the Democrats lost the majority, Sampson has been the minority leader. He’s also conference leader, which is a title the party out of power tends to prefer.
Under the three conference system that Klein envisions, it seems like the majority leader post would be moot. It is largely a political position, although there are mentions of majority leader responsibilities in state statute – mostly when it comes to making appointments to various state boards, commissions, authorities etc.
The Senate could conceivably get along without a majority leader. But I don’t believe the same can be said of the temporary president position. Why? Well, let’s start with Article III of the state Constitution, (the part that deals with the powers of the Legislature), which reads:
“A majority of each house shall constitute a quorum to do business. Each house shall determine the rules of its own proceedings, and be the judge of the elections, returns and qualifications of its own members; shall choose its own officers; and the senate shall choose a temporary president and the assembly shall choose a speaker.”
So, does “shall” mean “must” in constitutional parlance? No less an expert than my father, Dr. Gerald Benjamin, says “yes.” He notes that there are “shalls” all throughout the constitution, including in the portions that lay out the state’s responsibilities in housing the poor and education the young. These duties are not optional. And therefore, the logical conclusion is that appointing a temporary president of the Senate isn’t optional, either.
The constitution also speaks to the succession question, making the temporary president of the Senate third in line to run the state if the governor and lieutenant governor are unable to do so.
The temporary president also has the power to convene, along with the Assembly speaker, extraordinary sessions of the Legislature and to make an appointment to – among other things – the commission charged with recommending candidates to serve on the state’s highest court (on which there will be two vacancies at the end of next month).
So, the temporary president position is not optional. It is conceivable that more than one person would share the title. But it seems to me – and Dad agrees – that the Senate cannot opt out of filling the job.
Now, as for the statutory powers of the temporary president, well, there are an awful lot of those. Whoever holds the post is empowered to control per diems, for example, and also to make appointments to chamber positions (like stenographer, secretary, sergeant-at-arms etc.)
I guess, as Jimmy suggests (and I’m sure the IDC agrees), the rules of the Senate could be changed, and these powers vested elsewhere – like, say, with the committee chairs. But, if these powers are in statute, then wouldn’t the law have to be changed to amend them? It seems the IDC thinks not.
There is an off chance that we could see this whole mess end up in court if the Republicans and the IDC move forward with their coalition government plan and the Democrats refuse to get on board. Generally speaking, the judicial branch prefers to stay out of whatever the legislative branch is doing, reasoning that the branches were created as separate by the founders for a reason.
Then again, the Court of Appeals did weigh in on former Gov. David Paterson’s appointment of a new lieutenant governor (Richard Ravitch) to fill the vacancy he created when he ascended to take former Gov. Eliot Spitzer’s place. But the rationale for that decision was the fact that the Constitution is silent on the governor’s power to appoint a new LG. In this case, the Constitution is not silent at all.
|Print article||This entry was posted by Liz Benjamin on November 29, 2012 at 2:35 pm, and is filed under IDC, State Senate, Uncategorized. Follow any responses to this post through RSS 2.0. Both comments and pings are currently closed.|
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