Judgment Day

Legislature Brooded All Week,

But Has Yet to Lay Any Eggs;

Friday Eve, Low Expectations

We have been waiting all week for the Legislature to act on the major matters before it, which are supposed to be concluded by the end of this session.

It is late Friday afternoon and we believe that our writing week and your working week are likely to close before the unresolved, or secretly resolved but unpublished, issues are brought to a vote in Albany.

The New York State Legislature is not, however, the only deliberative body unable to reach prompt agreement on matters that await its consideration. For example, the United States Congress and the Obama administration are nowhere close to a method of dealing with the crisis when the national debt runs up against its statutory limit, now about 14 Trillion 294 Billion dollars. This is expected to occur on Tuesday, August 2.

Fortunately, the date can be manipulated slightly more than the date the next asteroid will strike Earth, with cataclysmic consequences. (BTW, and to his credit, it was former Congressman Anthony Weiner who did his best some years ago to get funds for asteroid research in the Federal budget, for which he was ridiculed at the time. Wait until the Last Days, when Congress will wish they had listened.)

At any rate, the date of the collision with the debt limit is now 39 days away, and the news stories are about people pulling out of negotiations, rather than joining in to solve the problem. One reason for this is that you get just as big a story by saying 'No' as saying 'Yes' to anything, and you're not responsible for a tax that doesn't happen. Another reason is that it is considered too early to appear weak - the rule of the playground.

Inability to agree does not stop at our nation's borders. The Iraqi democracy that we installed at great cost (Trillions of dollars and Thousands of American lives) has been paralyzed by internal rivalries, some over twelve hundred years old. The European Union is plagued by the inability or unwillingness of Greece and other countries to balance their budgets and reduce entitlements. The forces that drive people and nations apart are often based on greed or self-protection, which are two sides of the same coin. What is self-protection if I do it is greed if you do it.

The paralysis caused by inability to reach agreement is a world-wide problem. Democracy is not a cultural tradition in most of the planet we inhabit. We didn't have it ourselves before two centuries ago, and even then it was limited to white male property owners. Our sincere efforts to encourage and propagate democracy remind one to some extent of the labors of Christian missionaries who went to darkest Africa in the Nineteenth Century to spread the Word of the Lord by converting the natives to European religions. Those preachers of the Gospel had considerable influence in some countries, and probably did more good than harm, however they have endured in modern popular culture only in images of their being boiled in large pots before being devoured by the natives, and in the phrase 'the missionary position', now part of our language.

The more one leaves the prism of New York City and State and looks at the outside world, the easier it is to conclude that human behavior is to a greater extent based on primal instinct rather than European Enlightenment, a period which was unfortunately interrupted by World Wars I and II, where modern technology was put to use to kill people on a wider scale and more efficiently than in previous or future conflicts, say Rwanda, where people of the minority tribe (the Tutsis) had to be trapped in their huts which were set afire, or hacked to death one by one with machetes.

The conclusion one is tempted to reach after this extremely brief survey of human conflict in recent years, is that perhaps the Albany circus is not quite as bad as we think, compared with other methods of dispute resolution. Even though most of the players are narcissists and some are also thieves, the damage they can do to any of us common folk is limited by the state Constitution, as interpreted by the Court of Appeals.

There will always be squabbles over the allocation of government resources, and the role of the state in taking from one group (homeowners and other taxpayers, large and small) for the benefit of other specific groups (state employees, Medicaid recipients, prisoners and their guards). The political parties represent somewhat different slices of the economic spectrum, so some disagreement is inevitable and predictable. That's why we have elections.

Without giving any of these characters a pass on anything, and with some amazement that the human rights issue of gay marriage (whether one likes it or not), became a tail to economic disputes primarily involving state employees, we reserve judgment until the elected officials finish their deliberations. There will be plenty to write about then.

Philosophical Addendum

Since the preference of the Almighty has been raised so frequently in the gay marriage dispute, we venture to offer two thoughts on the subject by someone who has no unique knowledge of the issue.

If the Lord had meant for two people of the same gender to reproduce, s/he would have made that physically possible.

If the Lord had meant for two people of the same gender never to mate, s/he would have made that act physically impossible or at best extremely unpleasant for both partners.

These questions have been decided by Nature, and whether or not same-sex couples are allowed to marry will not affect Nature's Laws, which are frequently attributed to God since they were surely not made up by humans.

Calendar Issues

Weekend consideration of legislation may be affected by the fact that Speaker Sheldon Silver is a Sabbath observer, while sundry other legislators consider Sunday to be the Lord's Day, which may or may not be an appropriate time to make laws. Since the longest day of the year (the summer solstice) came just two days ago, the sun will set later this Friday than on any other Sabbath. The internet (timeanddate.com, successors to the almanacs) tells us that the sun will set this evening at 8:31 p.m. We do not know at this time what effect that fact will have on deliberations.

In negotiations where agreement is close but has not yet been reached, it has become customary to stop the clock, so as to postpone strike deadlines until remaining problems are resolved. But those are earthly clocks, and we do not know whether the Heavenly clock may be held in abeyance, even by the Most Dysfunctional Legislature in the United States.

However, the Sabbath rules have exemptions for works of necessity, or the saving of a life, so it is possible that the authorities would countenance the legislative session stretching into the prescribed Day of Rest. Although Speaker Silver deserves credit for helping Jonathan Lippman to become Chief Judge of the State of New York, and a wise judge he is turning out to be, we cannot reckon the Speaker's influence with the Heavenly Court which presumably decides matters of this magnitude.

Enjoy the weekend.





StarQuest #764 6.24.2011 1204 words

Too Close to Call

Senate Control in Doubt

As 3 Recounts Continue.

Chief Judge Sets Dec. 20

Deadline For Litigation.


"Just when you thought it was safe to go back in the water..." - Jaws 2 (1980)

Just when you thought the State Senate's inability to function could be resolved, seventeen days after the Nov. 2 election, we do not even know which party will organize the chamber.

So far, the Republicans have won 30 seats and the Democrats 29. Three seats remain undecided because the margin of the leader is very small, and absentee, military and emergency ballots have not been completely tallied.

In the State of Alaska, a count of write in ballots has been concluded and a United States Senator Lisa Murkowski declared elected. In the State of New York, we have no conclusive results in three separate senatorial districts, in Long Island, Westchester, and on the Niagara frontier.

In the Nassau district, Jack Martins, the Republican mayor of Mineola, declared victory for the second time since Election Day over Democratic incumbent Craig Johnson after the County Board of Elections concluded its count of all the absentee ballots with Martins ahead by 403 votes. Johnson, however, has complained of discrepancies in the ballots and has not conceded. The rivals are due back in State Supreme Court on November 29th.

In Westchester, 13-term incumbent Democrat Suzi Oppenheimer is currently in court against her Republican challenger Bob Cohen, a developer and contractor. According to the most recent count, Oppenheimer leads Cohen by 626 votes, as officials at the Board of Elections continue to count the 2400 emergency, absentee, and affidavit ballots.

Upstate, in an Erie-Niagara district, incumbent two-term Democrat Antoine Thompson trails Republican challenger Mark Grisanti, a lawyer. As of Wednesday, Grisanti's lead was 579 votes. When we called for today's numbers, Erie County Board of Elections Commissioner Dennis E. Ward informed us that he was at the very moment with representatives of the two candidates counting ballots and he didn't anticipate the counting to be completed for a week.

The First Congressional district race in Suffolk County between four-term Democrat incumbent Tim Bishop and challenger Randy Altschuler is similarly undecided and too close to call. The East Hampton Star reported on its website today that the lead changed hands twice with Bishop leading in the morning and Altschuler pulling ahead by 85 votes at the end of the afternoon's count. The contentious count will continue. Of over 180,000 total votes were cast, Bishop has contested 342 ballots and Altschuler has challenged 535, including those of Bishop's elderly parents who cast absentee ballots from Florida.

But that contest will not affect control of The House of Representatives. Imagine the angst!

Once the votes are counted, the lawyers for each side will proceed with the tedious business of challenging voters for the other candidate. Some handwritten votes are difficult to decipher, others may be marked outside the box, or otherwise be vulnerable to disqualification.

Some people who voted were probably not properly registered, or otherwise ineligible to vote in that place at that time. Although the standard may be to implement the intent of the voter, that intent may be difficult to determine. When a person has voted who was not entitled to do so, we are likely not to know for whom that person voted, or what effect the disqualification of such persons' votes would have on the result of the election.

Even where irregularities are discovered, they may or may not have been intentional. If they are unintentional, which is most often the case, it is difficult to find a remedy. To hold another election is expensive and time consuming. It is likely that the number of voters will be much lower in a special election, and the result less representative of the district. It is more practical to determine that the candidate who has received the most valid votes is the winner.

This process takes a lot of time, especially when many individual ballots are in dispute. The Senate was originally supposed to meet November 15, but a legislature cannot meet if its leadership is still undetermined. The next date suggested was November 29, the Monday after Thanksgiving Day, but it appears unlikely at this date (Nov. 19) that the winners in all three seats will have been determined by then.

After the various Commissioners of Elections determine the winners in the three disputed Senate contests, the losers have the right to appeal to the state courts, which will grant expedited hearings because of the immediacy of the disputes. Nonetheless, the judicial process is likely to take weeks.

Yesterday, Justice Jonathan Lippman, chief judge of the state Court of Appeals, set December 20 as the deadline to conclude all appeals, so that the contests will all be resolved before the Legislature convenes, with its new members, on January 5, four days after the inauguration of Governor Cuomo.

At this moment, the odds favor the Republicans in their effort to regain control of the State Senate. However, the process is definitely fluid and the outcome is by no means assured.

Democratic partisans will certainly be distressed to lose the Senate after finally regaining control in 2009 after 43 years in the wilderness of a legislative minority. However, the party should not be too surprised with the probable outcome of this election after two disastrous years in the majority that began with the "Four Amigos", continued through the Espada coup and Monserrate slashing and explusion, and ended with the Aqueduct racing scandal.

Not every Democrat is likely to mind a Republican Senate. In some ways, a Republican victory would be helpful to Governor-elect Andrew Cuomo, because he will have a foil in negotiations with Dean Skelos as Senate Majority Leader, while being freed of the burden of dealing with John Sampson, who, along with Senator Malcolm Smith, has been touched by the unfolding Aqueduct mess.

Of course, Cuomo must profess to desire Democratic control, but some political observers believe the GOP legislators' views may be closer to Cuomo's than those of the Working Family Democrats who support substantial tax increases. The new governor is aware of the reality of the state's fiscal situation and the 9 billion dollar deficit for FY 2012, with the budget due on March 31.

How he meets these challenges will determine the success of the new administration. Spitzer blew it in his first month by his intemperate language and his pursuit of Bruno. Paterson acknowledged ancient extramarital affairs on his first day in office. Cuomo will do better, but his task has been made more difficult by the failure of his predecessors to deal with the imminent financial crisis.

Can't Anybody Here Play This Game?

Budget Deadlock -Day 98



Buffalonian Senator

Stachowski Objects

To Paying Sales Tax

On Cheap Clothing



The state budget - or the lack of it - is as unpleasant a subject as the heat wave, and we had hoped that by now both issues would have been resolved.

Unfortunately, the parties in Albany are still far apart. Today we are 98 days behind the legal deadline, which means the new state fiscal year, 2011, is now more than one-quarter over. During the Pataki era (1995-2006) a couple of budgets were not approved until August, but we were promised that when the governorship and both houses of the legislature come under one party (the Democrats) that issues would be settled promptly and amicably.

Though there are many disputes simmering in Albany, the current deadlock is about adopting the budget. Whatever else the executive and legislative branches are supposed to accomplish this year remains in limbo, partly because there is a lame-duck governor, partly because the Democrats have a bare majority of 32 senators, which means every one of them must vote for a bill to pass it, for if any member objects, the bill is lost. A senator may raise objections because of unrelated grievances against the leadership or concerns over other legislation.

In the current standoff, both houses have passed bills specifying appropriations. As might be expected, they differ. However, only the Assembly has passed a revenue bill, which is needed to pay for the expenditures, or at least some of them. The Senate cannot muster 32 votes to pass a tax bill because Senator William Stachowski of Buffalo will not approve any measure which does not provide increased status and authority for the State University at Buffalo. To insist on this expansion of SUNY-Buffalo, Stachowski is withholding support for an agreed upon re-instatement of the state's portion of sales tax on clothing under $110, which the Assembly and Senate are depending upon to balance the budget. The Democrats oppose the expansion of power for SUNY-Buffalo (and Stony Brook) because potentially all 64 state colleges could seek independence and operate autonomously, raising tuition at will and leaving some institutions far stronger than others. We have no idea at this time how or when this issue will be resolved.

Senator Stachowski is also reported to be displeased because, as a leading Democrat on the Finance Committee, he expected to chair the committee when the Democrats regained control of the Senate (after 43 years in the wilderness). However, that plum went to Senator Carl Kruger, who with the 'three amigos', Espada, Monserrate and Diaz, Sr., effectively controlled the organization of the DINO (Democratic in name only) senate.

In fact, it was former Majority Leader Malcolm Smith's refusal of Espada's demand for millions of state dollars to subsidize the Soundview Health Center that he and his three sons operate, that triggered the Espada-Monserrate revolt that led to Smith's unseating as majority leader and Sampson's installation as conference chair, with benefits.

Public confidence in the State Senate was not enhanced by the resulting June 8 coup, in which Senator Pedro Espada and former Senator Hiram Monserrate voted with the 30 Republicans to displace the Democratic leaders and form a new Republican majority. After a month of anarchy, Espada returned to the fold, and was rewarded with the majority leadership, formerly held by Malcolm Smith, who was kicked upstairs to president pro tempore of the senate, making him third in line to become governor, if the worst should happen.

As a by-product of this successful piracy, Richard Ravitch was appointed Lieutenant Governor by Governor Paterson and Judge Jonathan Lippman persuaded three judges on the Court of Appeals to join him in finding the appointment constitutional, although it was historically unprecedented in the 233-year history of the State of New York. Paterson now says he regrets the appointment because he feels Ravitch is too close to Speaker Silver and to establishment figures in New York City.

Much of what remains of authority in Albany is concentrated in the Assembly Speaker, who is clearly master of his own house. However, prospective governor Andrew Cuomo is already making his own judgments on issues in which the speaker may have an interest, professional or personal. The de facto Democratic senate leader, John Sampson of Brooklyn, does not have enough votes to override a governor's veto. (Silver does, but both houses must concur in order to override.)

The result so far is deadlock, which can theoretically continue until the State runs out of money. Since its finances have been so manipulated, no one can predict with certainty when that will be. But as with Bernie Madoff, the day is certain to come.



UPDATE ON THE AQUEDUCT GAMING SCANDAL:

MALAYSIAN IS LAST MAN STANDING (AS OF TODAY)

Senator Sampson was criticized last month for leaking the details of a bid, including two internal Senate documents, on the Aqueduct racino to a lobbyist (former Senator Carl Andrews) for the Aqueduct Entertainment Group (AEG), the firm that won the contract, which has since been cancelled after the State Lottery Division deemed the Aqueduct Entertainment Group to be "unlicensable". Sampson denied any wrongdoing in connection with furnishing the documents to AEG, one of whose investors was former Congressman Floyd Flake, who has since withdrawn from participation in the group.

Yesterday's Post reported, in a story by Brendan Scott, headlined "2 OF 3 AQUEDUCT BIDDERS SCRATCHED" that "Now there's only one horse in the race for the multibillion-dollar casino contract at Aqueduct Racetrack.

"The state Lottery Division yesterday abruptly tossed two of the three bids it received last week to build and run a video slots parlor at the faded Queens track, leaving only Malaysian gaming giant Genting in the running.

"The cash-strapped state is counting on the winner to pay a $300 million licensing fee.

"Lottery officials decided that the two disqualified bidders - Penn National Gaming and the powerful SL Green-Hard Rock partnership - 'did not conform with the requirements of the competition.'"

The Acqueduct situation has been a public embarrassment since Governor Paterson first attempted to award the sole-source contract to the politically wired Aqueduct Entertainment Group on January 29th. This took place close to the time that he was soliciting the support of Reverend (and former Congressman) Floyd Flake's support in his projected gubernatorial race against Attorney General Andrew Cuomo. Flake was a minor participant in AEG.

Six months later, no final decision has been made. There has been no independent review of whether the racino is a good idea, or simply a desperate attempt to pump $300 million into a chasmic state budget hole that now exceeds $9 billion.

Why would any rational person seek to govern this state at this time, unless it were the family business?



STARQUEST IN THE NEWS

"The architecture of Central Park, like the United States Constitution, must evolve with the times." StarQuest weighs in on the future of Tavern on the Green in yesterday's New York Times. Read all about it here.

StarQuest reminisces about Parks Department alum, Bradley Tusk (a.k.a. Ivory), in this week's Observer profile of Tusk entitled "Mayor Bloomberg's Secret Weapon". Click here to read the entire article.

Paterson Channels Polonius

Albany Skirmish

Over Borrowing

Day 78 without a state budget.

78 is the speed of some old records, in rpm, the atomic number of platinum, and the number of chromosomes in a dog's DNA (39 pairs). We have 23 pairs.

We have not written since last week about the state budget and the contortions now under way as the legislature and governor try to reach agreement. It is not clear how hard they are trying, but we believe they are making a serious effort to come to terms. Governor Paterson's threat to shut down state government alarms incumbents who do not want to be blamed for any of their constituent-contributors not receiving their paychecks.

In the last months, the courts have shot down the governor's planned furloughs and layoffs as part of the judiciary's ever-expanding sense of its own responsibilities (see Citizens United v. Federal Election Commission). It was a Federal judge who ruled, in Donohue v. Paterson, that the governor could not impose a four-day work week, pursuant to the next to last prohibition of Article I, Section 10 of the Constitution. For those of you who may not recall the section, we reprint its relevant first paragraph:

"No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any title of Nobility."

In the past, Speaker Sheldon Silver has won many political battles by delaying a decision until the last minute, and then making a proposal which could not be refused. He is the most proficient politician in the Albany swamp, and his skills should not be underestimated. Some of his strength comes from the fact that he is responsive to his base (the Democratic Assembly caucus) and tries to protect his members, although a few of them are felons.

Silver is responsible for two major appointments made by the governor: Lieutenant Governor Richard Ravitch and Chief Judge Jonathan Lippman of the Court of Appeals. Both men are competent. Judge Lippman persuaded a bare majority of the Court of Appeals to sustain the appointment of LG Ravitch, a decision that may well have been in the public interest, although it would probably not have been the correct answer in a law school examination.

The decision certainly blindsided Attorney General Cuomo, who took the opposite position, but he has recovered nicely. He awaits the opportunity to choose Judges of the Court of Appeals himself, and will use his wits to avoid being boxed in by nominating committees which substantially limit his power of appointment by minimizing the number of papabili from whom he must choose.

The story today was that Governor Paterson said he would rule out borrowing, which is in direct contrast with the Ravitch plan, which calls for two years of borrowing, limited by the imposition of strict fiscal controls by a financial control board. If Paterson sticks to his guns, more layoffs will be required.

We expect some sort of flim-flammery to be proposed, which means borrowing billions from somewhere without calling it that. Raiding the pension funds is one possible scheme, vaguely justifiable because it is the swelling pension funds which got us into this trouble in the first place. Any more state borrowing, however, will further increase the interest on the public debt, which must be paid before one begins to provide for vital services like police, fire and education.

Paterson's problem is somewhat mitigated by the fact that President Obama, Governor Schwarzenegger and many other public officials have the same difficulties. The national debt today is about thirteen trillion dollars, or $13,000,000,000,000. We left off the number of cents so as not to appear to exaggerate the number of zeroes (12).

The problem at all levels of government, in many countries around the world, is that public expenditures exceed revenues. This can lead to devaluation of the currency, which makes debt less burdensome, and at the same time destroys people's savings. New currency was issued in the Democratic People's Republic of Korea (Pyongyang), and resulting public dissatisfaction led to the execution (by the regime) of two officials held responsible for the decision, and the demotion of others.

Living in a more gracious and gentle system, our economic blunderers go off to academia and think-tanks of like-minded souls. They are replaced by others whose views are just different enough to convey a sense of change. The first TARP program was enacted under President George W. Bush and Treasury Secretary Hank Paulson, former chairman of Goldman Sachs.

When Mr. Bush was asked why he had approved such a substantial bailout in view of his generally conservative economic views (but not practices, he was a mega-spender), he replied in effect that he did not want to go down in history as being President of the United States when the economy collapsed completely. The shade of Hoover was in his mind, and that was an image he urgently desired to avoid, and for the most part successfully did, although the subprime crisis and market collapse took place in 2008, and led to the defeat of the McCain-Pain ticket.

Every cloud has a silver lining.