The required three-day wait between the time state legislators receive a printed bill and the time it may be passed should be removed from our state Constitution. First added in 1894, this provision was designed to encourage deliberation and prevent the hasty adoption of flawed or mischievous legislation. Instead, as the recent rushed adoption of the SAFE NY gun control legislation showed, this intended restriction on the Legislature— with the accompanying empowerment of the governor to suspend it in emergencies—has simply changed the way in which haste can be achieved and deliberation avoided.
On June 14, 2000, as the legislative session rushed to a close, New York senators and Assembly members found on their desks S8177, a bill designed to end remote retail sales of untaxed cigarettes. The measure was accompanied by a "message of necessity" from Governor George Pataki allowing its passage without the constitutionally mandated three-day wait. The Senate passed it that day; the Assembly the next.
A Native American tobacco dealer in Salamanca, Scott A. Maybee (doing business under the name "Smoke Signals"), feared this law’s likely effects on his business, and sued to stop its implementation. Maybee’s lawyers argued that there was, in fact, no emergency. In his message, they said, the governor had not met the constitutional requirement to provide "…the facts which in his or her opinion necessitate[d] an immediate vote…" on this bill (Article III section 14). Therefore, they averred, S8177 was unconstitutionally enacted, and void.
Almost five years later, Maybee v. State of New York, 4 NY3d 415,reached the state’s high court, the Court of Appeals. Drawing upon precedent and writing for a four-judge majority entirely comprised of Pataki appointees, Judge Robert Smith pointed to the Constitution’s requirement of an expression of an "opinion" by the governor. The court’s majority declined to substitute its opinion for that of the executive on a political matter. "[S]o long as the Governor’s certificate contains some factual statements," Smith wrote, "the sufficiency of the stated facts to support the Governor’s conclusion cannot be challenged."
Writing for a three-judge minority (all appointed by Democrat Mario Cuomo) Chief Judge Judith Kaye disagreed, looking in part at the state’s constitutional history as a basis for doing so. Criticism of governors’ routine usage of messages of necessity to bypass the three-day waiting period caused the exclusion of this power from the Constitution prepared at New York’s 1915 constitutional convention. (This Constitution failed of passage at the polls.) The language requiring the governor to provide "facts" was added in 1938; nonetheless, subsequent interpretation caused this change to have little practical effect.
Kaye wrote that for the court to sanction the message of necessity provided by Pataki for S8177 of 2000 was "…to read that provision out of the constitution." Nonetheless she and those who joined her concurred in the result in the Maybee case, because of the "great unsettlement" that might arise from the retrospective effect on legislation passed through the routine use of "pro forma" messages of necessity. The lesson for the governor going forward, Kaye said, was to "…simply include in any message of necessity the minimal statement of facts that compliance with the Constitution requires."
But this is not enough. The practical consequence of the three -day waiting period and message of necessity provisions are to further empower the governor in lawmaking. Yet the state Constitution already gives the chief executive more than sufficient power in the legislative process. He or she sets the annual agenda with the State of the State message, and dominates budgeting to a degree beyond that intended. Gubernatorial support makes others’ substantive legislative proposals viable. Formally, he or she has a veto; informally there is the bargaining power that arises from the veto threat.
If New York entirely eliminates the three-day waiting period provision from the state Constitution, there is no need for messages of necessity. Full control of the legislative agenda would return to the Legislature, where it belongs. Ill considered, hasty action would no doubt still be attempted and sometimes occur; there may be occasional negative consequences. But these are anticipated and addressed in other constitutionally-based safeguards: this is one reason why there are two legislative houses; this is one reason why the governor has his or her veto.
A society of laws works best when there is congruence between law and practice. If we remove these provisions, we will begin to restore a state Constitution that means what it says—a very big deal, indeed.
Gerald Benjamin is a distinguished professor of political science at SUNY New Paltz.