"It Ain't Necessarily So": The Governor's "Message of Necessity" and the Legislative Process in New York

Article excerpt

I think the people of the state said they want something done and they want it done now ... Let's act. (1)

--Governor Andrew Cuomo

The bill was muscled through with disturbing speed after days of secret negotiations and a late-night vote Monday by state senators who had barely read the complicated measure before passing it. (2)

--The New York Times

Three days of debate, everyone has an opinion, it's entirely transparent, [and] we never reach resolution ... I get 100 percent for transparency. I get zero for results. (3)

--Governor Andrew Cuomo

A legislature that rushes critical, controversial bills to passage is one that deliberately excludes the public. A legislature that cannot wait three days to revise a mission statement governs by crisis. This must stop. (4)

--Syracuse Post Standard

Among the qualities we use to assess the performance of our state legislature are "high 'visibility,' performing its duties responsibly and in such a fashion that the public can oversee and judge its actions; ... its rules permit majority rule while protecting against arbitrary action; ... [and] it has sufficient time and resources for informed deliberation. (5)

--Patricia Shumate Wirt

I have come to the conclusion that the making of laws is like the making of sausages--the less you know about the process the more you respect the result. (6)

--Unnamed Member of the Illinois State Legislature

I. INTRODUCTION

Among the various restrictions on the legislative process found in the New York Constitution, (7) none has raised more controversy or received more attention than the provision authorizing the governor to issue a message of necessity to suspend the constitutional requirement that legislation be on the desks of legislators in final form at least three calendar days before final passage. Both the three-day requirement and the message of necessity provision were added to the constitution by the 1894 Constitutional Convention. (8) Following amendments in 1938 and 2001, the section, Article III, section 14, reads as follows:

      No bill shall be passed or become a law unless it shall have
   been printed and upon the desks of the members, in its final form,
   at least three calendar legislative days prior to its final
   passage, unless the governor, or the acting governor, shall have
   certified, under his or her hand and the seal of the state, the
   facts which in his or her opinion necessitate an immediate vote
   thereon, in which case it must nevertheless be upon the desks of
   the members in final form, not necessarily printed, before its
   final passage; nor shall any bill be passed or become a law, except
   by the assent of a majority of the members elected to each branch
   of the legislature; and upon the last reading of a bill, no
   amendment thereof shall be allowed, and the question upon its final
   passage shall be taken immediately thereafter, and the ayes and
   nays entered on the journal. (9)

The three-day rule, one of a number of constitutional restrictions imposed on the legislature during the nineteenth century, (10) was aimed at preventing hasty, ill-considered, and one-sided legislation. At the same time, allowing the legislature to bypass the three-day rule through the message of necessity enables the state government to respond quickly when extraordinary circumstances justify a waiver of the required public airing of legislation before final passage.

Unlike several other constitutionally prescribed messages that the governor is authorized to issue, (11) the Article III message of necessity does not require a vote by the house in question to accept the message. (12) Nor does it require that an "emergency" exists. (13) Messages allowing suspension of the three-day requirement must certify that facts exist which "necessitate an immediate vote." (14) The absence of stringent standards for the issuance of messages of necessity has resulted in practices that have frustrated the original intent of the three-day aging requirement. …