THE NEW YORK STATE LEGISLATIVE PROCESS: AN ...

30 THE NEW YORK STATE LEGISLATIVE PROCESS: AN EVALUATION AND BLUEPRINT FOR REFORM
of the message even where an emergency does not exist: “We know that probably
some bright fellow down there acting as counsel to the Governor will sooner
or later formulate a statement of facts” necessitating an immediate vote that the
governor could sign by rote. 198
Such predictions were well founded. In the 1970s, members of the Legislature
claimed “that governors and legislative leadership have employed the emergency
provision to minimize both publicity and legislative debate on controversial and
self-serving proposals.” 199 Former State Senator Clinton Dominick reported during
this period that the leader “can even hold secret Saturday and Sunday meetings to
‘age’ bills he supports,” so that they quickly pass the three-day rule and can be voted
on. 200 Abuse of the message of necessity was briefly raised as a target for legislative
reform in 1973, but was not ultimately addressed. 201 In short, without amendments
to the Legislature’s rules, the message of necessity will continue to allow legislation
to be passed without debate, or even review, by legislators or the public.
■■ VOTING PROCEDURES
In most legislative chambers, some form of roll-call vote is required for final
passage of legislation. 202 In a slow roll-call vote, each legislator’s name is called
and each must vote “aye” or “nay,” and these votes are recorded in the chamber’s
journal. 203 Both the Senate and the Assembly in New York use a “fast roll call” as
the default procedure, in which the members’ names are not called individually
and their votes are counted automatically as affirmative unless they take action to
record a negative vote. 204 Only upon the request of one member in the Assembly,
or five members in the Senate, must a slow roll call be taken on a final vote. 205
Both chambers also employ what critics have called “empty seat voting,” in which
members who have signed in for the day but are absent from the chamber, as well
as members who are present but fail to indicate a negative vote by raising their hand
to notify the clerk, are counted as affirmative votes. 206 At no time does a legislator
have to consider or cast a vote in order to pass legislation. Nor does he or she even
need to be present when it happens. This is true despite the New York
Constitution’s requirement that no bill shall “be passed or become a law, except by
the assent of a majority of the members elected to each branch of the legislature.” 207
One Assembly member notes that members’ ability to vote “aye” without being
present also contributes to the paucity of debate on the floor. 208
Although the Assembly does not keep a record of the procedure used to pass each
bill, legislative staff and other sources confirm that the fast roll call and empty
seat voting are the rule rather than the exception. 209 In the Senate, the Annual
Journal of the Senate includes a record of which procedure was used for each
bill. Out of the 308 major bills passed from 1997 through 2001, the Senate used
a slow rather than fast roll call on only two occasions. 210 On one additional occasion
a “party vote” was taken in which votes were automatically tallied based on
party affiliation. 211