KATHY HOCHUL

The end of the imperial governor

Incoming Gov. Kathy Hochul could unwind a century of growing executive control.

LT. GOV. KATHY HOCHUL faces a choice after she officially becomes the first female governor of New York on Aug. 24. She could wield her power to its maximum extent, or she could give up some of it to ensure future reforms outlast whatever time she has as governor.

There are signs already that the Western New York native – who already announced her intent to run for a full term in 2022 – might give up some power in the 16 months left in the term she inherited from the infamously heavy-handed Gov. Andrew Cuomo, who announced on Aug. 10 that he would step down in the face of impending impeachment over a litany of scandals. Hochul has said that addressing sexual harassment will be a top priority for her. Another will be giving legislators and local officials a greater voice in policymaking. “My style is very collaborative,” she told CBS News in an interview after Cuomo said he would resign. “I will listen to people (and) we’re looking forward and making sure that my reputation and the reputation of my administration is one that is completely ethical.” That is all more easily said than done.

She will enter office with immense powers under the state constitution to unilaterally dictate state spending, micromanage state agencies and control the judiciary through her appointments. A lack of term limits has meant that a litany of governors have reigned longer than Julius Caesar and Napoléon Bonaparte. “The system is fundamentally set up for the executive to have as much power as possible in New York,” Assembly Member Ron Kim of Queens said in an interview. “It also reflects one of the weakest legislative branches in the country.” Governors in other states are much less powerful by comparison, especially in more populous places like California, Texas and Florida. One 1990 study found New York governors were the second-most dominant in the nation (behind Maryland), and the office has only gained additional responsibilities since then.

The impending resignation of Cuomo could mark the end of a century of growing gubernatorial power in the Empire State, according to interviews with experts and legislative leaders. Hochul is vowing to pursue a more collaborative leadership style and legislators are more emboldened than ever to assert themselves at the expense of the Sec-

JEENAH MOON/ AP/ SHUTTERSTOCK Since Gov. Andrew Cuomo announced his resignation, the media spotlight has been squarely on Lt. Gov. Kathy Hochul.

ond Floor. “The (state) constitution itself and court decisions interpreting it have really skewed the power dynamic in state government,” state Senate Deputy Majority Leader Michael Gianaris of Queens said in an interview. “We need to correct that.” The extent to which Hochul might support or resist such efforts could go a long way toward determining her success as governor.

There are two constitutional amendments that lawmakers have proposed to reduce the governor’s power. The first aims to eliminate the budget powers established by the state court decision in Silver v. Pataki, which blocked lawmakers from making substantial changes to the proposed budget, beyond tweaking spending numbers. State lawmakers could refuse to approve the budget, but the governor could then dare them to either pass one-week budget extensions or risk the political fallout of shutting down state government. Lawmakers have argued for years that this is inherently undemocratic. “Government in America is supposed to be characterized by checks and balances,” Assembly Member Richard Gottfried of Manhattan, who has sponsored the amendment in the past, said in an interview. “And in New York state, we have not had that, effectively, in a long time.” Implementing that change would require votes by majorities of two successive legislatures and approval by New York’s voters. The failure of a 2005 ballot referendum highlights how a governor thwarted such an effort by saying it would unleash fiscal anarchy by allowing legislators to have more power.

Another amendment backed by a growing group of state lawmakers would establish a new Government Integrity Commission to investigate alleged wrongdoing by people in the executive and legislative branches of government. A critical difference between this proposed ethics body and the much-criticized Joint Commission on Public Ethics, established in 2011, would be that the governor and the legislative leaders would have much less leeway to choose commissioners who might later decide on cases concerning them or their political al-

Hochul has said she plans to institute much stricter rules as governor for her staff when it comes to ethics and sexual harassment.

lies. Hochul can institute new rules as governor for her staff and the executive agencies on ethics and sexual harassment. She could also instruct state agencies to be more responsive to Freedom of Information Law requests or give the state comptroller more responsibility for overseeing contracts. “I want by the end of my administration for every woman to say there are no barriers, there is no longer a ceiling,” she told CBS News about battling sexual harassment. Enacting more lasting change with new laws and constitutional amendments might mean that she and her successors lose some of the sweeping powers they acquired long ago when creating a powerful governor was all the rage in progressive politics.

Reforms enacted in the early 20th century greatly consolidated control over state government in the Second Floor. This happened as part of a wider expansion in executive powers across the country that saw the beginning of the imperial presidency, according to Gerald Benjamin, a retired political science professor at SUNY New Paltz and expert on state government. “The American system was initially designed to locate power in the legislature,” he told City & State. “The New York governor was initially stronger than most state governors in the 18th century – but still mostly an agenda-setter.” That changed in the 1920s when Gov. Alfred Smith championed sweeping changes to state government.

Progressives at the time believed that a stronger executive could better battle corruption by appointing state agency leaders, who had previously been elected, and establishing a formal budget process compared to the fiscal free-for-all among departments that had previously existed in the state Legislature. These changes created an imperial governor by design, according to a 1919 report prepared by staff under Robert Moses in his days as a good-government idealist. “The only serious argument advanced against such a proposed reorganization and budget system is that it makes the Governor a czar,” reads

City & State New York

13 SILVER V. PATAKI, EXPLAINED

NOTHING BEATS BUDGET season in Albany, at least before COVID-19, as lawmakers, activists and lobbyists fill the halls of the state Capitol, attempting to get their priorities passed. Although observers refer to the “three men in a room” – the state Senate majority leader, Assembly speaker and governor – crafting a budget deal, the three don’t share power equally. The governor has had the lion’s share of control in the budgeting process since a 1927 constitutional amendment and the much more recent court decision in the case Silver v. Pataki interpreted the state constitution in such a way that further empowered the governor.

Silver v. Pataki is actually shorthand for two cases that were decided at the same time: Silver v. Pataki, brought in 1998, and Pataki v. Assembly, brought in 2001. In the former case, thenAssembly Speaker Sheldon Silver sued then-Gov. George Pataki over the 1998 state budget. The Legislature had passed Pataki’s appropriations bills, but then attempted to amend how certain money could be spent and put conditions on spending through nonappropriation bills also included in the budget package. Pataki said lawmakers unconstitutionally changed his appropriations bills – the Legislature can only reduce or completely cut appropriations that the governor proposed – and he rejected the changes through line-item vetoes. So Silver went to court.

In the second case, the Legislature said the appropriation bills that Pataki introduced contained language, specifically around education and health care spending, that did not belong there. So lawmakers removed the language they considered unconstitutional and entire appropriation items. But they then introduced their own bills – 37 “single purpose bills” to be exact – that appropriated the same amounts with similar purposes but different conditions and restrictions. Lawmakers argued they were within their constitutional right to do this after passing or rejecting the governor’s bills. Although he signed them, Pataki sued the Assembly so a court could declare whether what they did was unconstitutional.

The cases made their way to the Court of Appeals, the highest court in the state, in 2004, when the panel of judges ruled on both cases. By a 5-2 margin, they found that the Legislature had unconstitutionally changed Pataki’s appropriation bills, but the final ruling Then-Gov. George Pataki won a court case to solidify his budgetary power.

had only a three-judge plurality due to the trickier question the lawsuits posed. Namely, what is the line that a governor can’t cross when it comes to including appropriation language that doesn’t directly relate to the budget? Although the plurality agreed that Pataki acted constitutionally, it agreed that the courts should determine a measure to figure out how far is too far. But the judges did not do this, leaving the question “for another day.” A decade later, Gov. Andrew Cuomo pushed the envelope with the amount of control he exerted over the 2015-16 budget, with many looking at Silver v. Pataki as the precedent for flexing his gubernatorial power.

the report. Court decisions in subsequent decades gave governors even more power on the margins, according to Benjamin, but nothing like what would happen in the early 21st century following Silver v. Pataki.

More formal power was a big boost for governors following the landmark decision, but a key challenge for them was how they balanced that with more informal means of influence. Then-Gov. George Pataki, who was the defendant in the eponymous lawsuit lodged by then-Assembly Speaker Sheldon Silver of Manhattan, declined to run for reelection after the decision because of plummeting poll numbers. His successor, Eliot Spitzer, did his best to strongarm lawmakers, but eventually resigned over a prostitution scandal. David Paterson then rose from his position as lieutenant governor under circumstances similar to Hochul’s. He too had to face the question about whether less could be more when it came to executive power. “Pataki was an imperial governor and Spitzer was on his way to being an imperial governor,” Paterson said in a recent interview. “I didn’t try to do that. You didn’t see everything with my name on it. You saw a lot of my administration leaders doing press conferences and participating more. I see Hochul continuing that, because of all the imperial governors, Andrew (Cuomo) was the super imperial governor.”

Hochul will face a multitude of challenges as governor, beyond dealing with sexual harassment, ethics and involving other elected officials in key decisions. COVID-19 cases are rising quickly again across the state, and there are no easy answers on how best to address the spike in crime. Those two issues alone could require her to assert her power in ways that could anger legislators, local leaders and voters. Democrats have left-leaning supermajorities in the state Senate and Assembly that could challenge her authority and override any vetoes from a centrist like Hochul, which could overpower her at times like they did on school funding when Cuomo had been weakened by scandals. New York City will have a new mayor soon after Hochul takes office. The downstate voters, labor unions and Black lawmakers who helped elect Brooklyn Borough President Eric Adams as the Democratic nominee are just the types of constituencies that she will need to defeat primary challenges from prospective gubernatorial candidates like state Attorney General Letitia James.

There is a good argument to be made that Cuomo has gotten the better of de Blasio during their public rivalry. State government has a lot of power over the city, which cannot raise taxes or even install speed cameras without getting the greenlight from Albany. Focusing on scoring points against de Blasio, however, turned a onetime political ally into an avowed enemy. Both Hochul and Adams, a former state senator, appear intent on avoiding that. They are both moderate Democrats who are reaching their political heights after spending a good part of the past eight years tending to low-level political chores like ribbon-cuttings as lieutenant governor and borough president. The first few months in office will be critical for both of them as they establish themselves. “I know Eric, and if there’s a relationship to be had, he will foster it,” said Bertha Lewis, who founded The Black Institute and supported Adams for mayor. “It is to his advantage and to her advantage.” Recent visits with de Blasio and New York City Public Advocate Jumaane Williams, who challenged Hochul in the 2018 lieutenant governor primary, underscored how Hochul has made a public show of playing nice with city officials.

Lawmakers said they similarly expect many more carrots than sticks coming from the Second Floor in the coming months, following a decade of political beatings by Cuomo that culminated in the political maneuvering at the beginning of the coronavirus pandemic that gave him emergency powers that let him make or end state laws

“The system is fundamentally set up for the executive to have as much power as possible in New York.”

– Assembly Member Ron Kim

Hochul will have to tackle the rising number of COVID-19 cases and how to handle the reopening of schools in her first few weeks as governor.

at will. “You can almost say Kathy Hochul is the un-Cuomo,” said state Sen. Sean Ryan, a fellow Democrat and Western New York native who has worked with Hochul for decades. “She likes to do everything right out in the open, and she’s a pragmatist.” Her knack for retail politics and gladhanding has been matched by a serendipitous ability to make friends with people long before she might need their help. This included the help she gave a 1998 congressional candidate who Hochul had just met and needed to make inroads with voters in Hamburg when Hochul was serving on the town board. “She didn’t have to do that,” now-Assembly Majority Leader Crystal Peoples-Stokes of Buffalo said in an interview. “She did that because she is a true Democrat. It’s about values, and not a person’s color, not a person’s gender, not a person’s ethnicity.” So if legislators start pushing for transformative changes to state government, it is safe to say that they expect Hochul to hear them out and work with them to make it happen.

Hochul declined to be interviewed for this story, and it remains unclear to what extent she would support a dramatic rebalancing of power between the executive and legislative branches, especially when it might undermine her influence on issues other than ethics or sexual harassment. Listening to others is her priority until she officially becomes governor. “I look forward to delivering an address to all New Yorkers to lay out my vision for the great state of New York,” she told reporters in her first press conference as the governor-in-waiting. That speech could say a lot about just what type of governor she wants to be.

She could take unilateral actions to show that the types of scandals that ultimately led to Cuomo’s downfall (a few examples are sexual harassment allegations, a reported cover-up of COVID-19 deaths among nursing home residents, alleged self-enrichment through a $5.1 million book deal that was completed using state resources) will not reoccur under her watch. She could add permanency to any changes by supporting new laws and constitutional amendments. Actions like that could show that Hochul is intent on dismantling a system of power that has allowed governors to reign over the Empire State as relative imperial sovereigns for nearly a century. Yet, the realities of politics have already shown how self-professed reformers like Cuomo can end up resisting changes that undermine their own positions. “It is my experience that executives, if they have explicit powers within a constitution, aren’t particularly gung-ho at reducing the amount of power they have,” state Sen. Liz Krueger of Manhattan said in an interview.

There is a risk though that the first woman to be governor of New York could become the victim of outsized expectations. “You’ll notice a narrative is already developing around her: OK, the bad governor is gone, what is the new woman governor going to do to fix Albany? And let me tell you in no uncertain terms: thinking like that is setting Kathy Hochul up to fail,” Assembly Member YuhLine Niou of Manhattan said in an Aug. 18 speech at a City & State event filled with legislators, lobbyists and political watchers. “There will be powerful voices who argue that it is because of her failure, or that no one can ever fix these problems, or that our system, and the environment it breeds, cannot change.” Whether or not this happens, the current honeymoon period that Hochul will enjoy early in her tenure will not last forever. The upcoming legislative session and budget season will likely feature many political battles, and Hochul will have to choose how best to invest her political capital.

Ending the era of the imperial governor will take time. Laws take months to pass and amendments to the state constitution take even longer. While a full term in office would be necessary for Hochul to see this process through, she would need to get going as soon as she takes power. “Her opportunity to advance structural change is now,” Blair Horner, executive director of the New York Public Interest Research Group, said in an interview. “The longer she (is) in office, the harder it will be.” Yet, even if she only serves the remainder of Cuomo’s term, she will already have accomplished something significant – even if legislators and good-government activists alike are hoping Hochul’s ascendance represents something much bigger.

“Andrew Cuomo was a tyrant, and Kathy Hochul will certainly do better,” Gianaris said. “(But) I’d like to see her do more than just that.” ■ With reporting by Jeff Coltin