Four Men Enter, One Budget Leaves: How Cuomo’s Black Box Negotiating Leaves NYers In The Dark

New York State’s budget is due in less than four days, on April 1, yet most legislators, advocates, and voters have no idea what it will fund, whether any programs will be cut, or which promises will be kept. This is by design: As they have done for the past eighty years, the governor and two or three leaders of the state legislature hole up in a secret negotiating session, emerge a few minutes before (or after) midnight, and then force a vote on the budget without anyone really having a chance to read it. On Friday, Governor Andrew Cuomo, Republican Senate leader John J. Flanagan (R), IDC Senate leader Jeff Klein (IDC), and Assembly Democratic leader Carl E. Heastie (D) will disappear into a room, and, in just a few hours, with no public scrutiny, will decide how New York will operate for the next year.

This is an incredibly bad tradition that has continued well into Cuomo’s second term, because it allows the governor to exert outsized influence over the entire process instead of actually letting legislators, you know, legislate. Over the past several years, Cuomo has been able to undercut progressive legislation and make deals with the State Senate’s Republican leadership (which he props up) in exchange for their support of his pet projects, while making a mockery of the entire legislative process. In turn, he gets to play the role of someone willing to reach across the aisle, who turns in budgets on time (in fact, Cuomo’s insistence on that has become something of a obsession of his, though 2015’s was three hours late).

A great example of how this budget process plays into Cuomo’s hands and betrays the idea of a democratic system would be the governor’s New Year’s Eve veto of a bipartisan indigent defense bill that would have spared thousands of New Yorkers from ineffective counsel and fixed a system that had been the target of a class action lawsuit that the state eventually settled in 2014.

That bill, which passed both state houses unanimously, would have shifted the funding of indigent legal services from the various budget-strapped counties, which have proven to be unable to support Constitutionally-mandated robust defense for the people they arrest, to the state. Right now, New York is one of only a few states that don’t pay for indigent defense, and the only one in the northeast.

In vetoing the bill, Cuomo cited what he considered to be the exorbitant costs — his office estimated it would add $800 million a year to the budget. The governor also believed that the bill went far beyond the settlement he agreed to in the case, Hurrell-Harring v. State of New York, which only focused on five upstate counties.

Still, the legislation was designed to do just that — to go beyond the bare essentials of a criminal defense and bring New York State’s criminal justice system in line with its aspirations to be at the forefront of reform. (A separate legislative initiative, to raise the age of criminality to 18, has also been delayed, if not derailed, by the budget process — more on that later.)

At the time of his veto, Cuomo’s office promised to quickly resolve the indigent defense issue through the budget, where funding would be allocated to counties based on their need. When he revealed his actual budget proposal, Cuomo went a bit further than that, proposing to have direct control over determining exactly what constituted “need.” The governor slotted $240 million for indigent legal services, but in a bureaucratic twist, he would oversee the use of that money through the Division of the Budget, which is controlled by the executive branch, and not through the state’s Office of Indigent Legal Services, which had administered the changes at the five counties that were part of the class action settlement, and which had been lauded by public defense organizations for their oversight of the reforms.

In explaining the move, Morris Peters, a spokesman from the Division of the Budget, said that the governor’s budget proposal is intended to bring the reforms from the class action lawsuit statewide, while also limiting state spending. “The transparent backdoor attempt to shift existing local costs from the counties to state taxpayers has nothing to do with improving Indigent Legal Services and is counterproductive to the passage of these important reforms,” Peters told the Voice.

But the New York Civil Liberties Union, which filed the class action against the state, is unconvinced by this reasoning. “New York cannot claim to be the most progressive state in the nation while still not meeting constitutional standards,” said Robert Perry, legislative director of the NYCLU. “What the governor has suggested is that the Department of the Budget should approve caseload caps and quality of representation. There’s no other agency that we’re aware of where the DOB can micromanage operations. That’s what is being proposed here. It’s being put in charge of a decision for which it lacks competence.”

Perry believes that Cuomo’s proposal is truly beside the point, however, and is distracting from the more important discussion. “Our view is the legislature had it right last year,” Perry told the Voice. “The state is resisting its constitutional obligation to fund public defense offices, and it continues to abdicate that responsibility.”

The state legislature has now proposed another bill that would require the state to fully fund public defenders’ offices, along much the same lines as the bill Cuomo vetoed.

In vetoing the bill and bringing the issue back into the secret room, as it were, Cuomo has continued to wield his office in the same antidemocratic manner that has kept Albany dysfunction at an all-time high; press releases from the 2013 budget negotiations are literal rap sheets in 2017, and just last week, Republican State Senator Robert G. Ortt was indicted for allegedly giving his wife a no-show job. At the same time, his predecessor, George D. Maziarz, was also indicted on charges of trying to pay off a former aide who had been accused of sexual harassment.

Ethics reform, a prominent centerpiece of the governor’s state of the state address, is one of several other priorities of the supposedly progressive Cuomo that he has either diminished or killed before budget time. The governor started the year bullish on the prospect of ethics reform, and proposed creating a “chief procurement officer” who would report directly to Cuomo instead of the state comptroller; adding term limits for the legislature; limiting outside income to lawmakers; and closing an LLC loophole for campaign donations. But resistance to more unrealistic proposals like the “chief procurement officer” and term limits has turned Cuomo’s proposal into a useless gesture that was almost immediately shot down by Republican leaders. The governor has shown no genuine interest in revisiting the issue in the final week of budget negotiations.

Here are just a few more progressive “priorities” that have met the same fate:

— Cuomo announced a massive affordable housing plan at the beginning of 2016, only to tie up much of the promised money in last year’s budget as part of a “memorandum of understanding” with state legislators. So far, only $150 million of a promised $20 billion have been released, and legislators have yet to honor the memo.

— The governor vowed to “raise the age” this year and stop incarcerating 16- and 17-year-olds as adults, but has begun to water down the initiative so much in negotiations with Republicans that it might not even resemble what advocates would like to see, if it’s included in the budget at all. The breakaway group of Democrats known as the Independent Democratic Conference maintains that the legislation will indeed be in this year’s budget. As they are the main bulwark against progressive legislation actually passing the state senate, we won’t take their word for it just yet.

— Back in 2011, Cuomo made a Republican-friendly tax cut that took money from the MTA. He promised to reimburse that money from the state’s general fund, which he’d been doing until this year, when he decided to shortchange the MTA by $65 million.

— Last year’s huge “accomplishment” was a raise of the minimum wage to $15 in New York City in 2019, with Long Island and Westchester counties to follow in 2022. While the governor proudly announced a statewide $15 minimum wage, this fell far short of being true, as the rest of the state will get to a minimum wage of $12.50 by 2021, when the governor will then consider if a $15 wage is feasible.

The governor has yet to back down from perhaps the most odious part of his Executive Budget, which includes cutting back visitation at state jails to only three days a week, and phasing in videoconferencing as an alternative. The cuts in visitation would only save the state $2.6 million of a $3 billion budget.

At the same time, Cuomo continues to prepare for a 2020 presidential run as a progressive rebuke to President Donald Trump, while displaying the same deep Queens strong-arming tactics as his former neighbor. And while Trump has so far found that style ineffective in the White House, it has always found a home in Albany.