Provides that items of appropriation in bills submitted to the legislature pursuant to article 7 of the constitution shall be consistent with existing state law or with proposed amendments to state law and requires submission of a separate nonappropriation bill containing proposed amendments to law consistent with article IV appropriations.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A4630
SPONSOR: Silver (MS) TITLE OF BILL: CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY
proposing amendments to article 7 of the constitution, in relation to
items of appropriation
PURPOSE OR GENERAL IDEA OF BILL: To ensure that the budget that is
submitted by the Governor and acted upon by the Legislature is clearly
itemized, addresses only fiscal matters and is not used to circumvent
existing statutory, non-fiscal law.
SUMMARY OF SPECIFIC PROVISIONS: Section 1 of the resolution amends
section 3 of article 7 of the New York State constitution by providing
that the Governor's appropriation and reappropriation bills be
constrained by existing law or by specific changes in law proposed and
intended to amend existing law that may only be stated in separate
legislation. Section 2 of the resolution amends section 4 of article 7
of the Constitution by providing that the strictures on th Legislature's
ability to act on appropriation bills (the Legislature is limited to
striking out, reducing or rejecting appropriations submitted by the
Governor) apply only to those appropriations that do not run afoul of
section 3 of article 7 as amended by resolution; otherwise, there are
not such limits. Moreover, the amendment further requires that the
Legislature, when passing an appropriation bill that contains additions
to the Governor's submission, estimate the fiscal impact or such addi-
tions on the budget submitted by the Governor, identifying if appropri-
ate sources of revenue for such additions, in a form to be determined by
law. Finally, section 3 of the resolution amends section 6 of article 7
of the Constitution to ensure that each item of appropriation: (1) is
scheduled separately; (2) is, where possible, accompanied by the statu-
tory basis for its appropriation; (3) does not, in an of itself, enact
the conditions of a program to be funded; and (4) does not abrogate or
modify existing provisions of law unless it is submitted in accord with
section 3(a) of article 7.
JUSTIFICATION: In December, 2004, the New York Court of Appeals in an
opinion in two cases, Pataki v. Assembly (No. 171) and Silver v. Pataki
(No. 172) (December 16, 2004), held that while the Governor "should not
put into
an appropriation bill essentially non-fiscal or non-budgetary
legislation," should he so act, the Legislature had no remedies other
than accepting, rejecting or reducing the dollar amount adjunct to such
appropriation. The Court gave broad discretion to the Governor to bypass
and, in effect, inactivate any part of New York's corpus of law if he
took such action in the guise of an appropriation bill.
Indeed, in recent years, the Executive has inserted vast, far-reaching
policy initiatives in appropriation bills that at times have circum-
vented bypassed then-existing substantive law which had been enacted in
the usual bill enactment process, subject to traditional notions of
"checks and balances". As a result, broad substantive changes in law are
insulated from meaningful review and amendment. The Court of Appeals has
endorsed this process, one which could not have been foreseen by the
framers of New York's Constitution.
While the Court of Appeals expressed its fear that the Legislature would
undermine the Governor's role in budget making if it could alter appro-
priation language, these amendments maintain the Executive's power to
"construct" the budget and the Legislature's role as "critic" of that
budget as envisaged by the framers of the current Constitution and the
Court of Appeals. They, however, are intended to deprive the Governor of
the ability to cloak changes in substantive law from meaningful scruti-
ny.
The Governor would be barred from changing or otherwise abrogating
existing law in an appropriation bill. Under implementing law accompany-
ing this amendment, the Legislature would be required to identify early
in the budget making process those instances where existing law is
changed by an appropriation or requires a change. The requirement
included in section 3 of the Resolution amending section 6 of article 7
that an item of appropriation "shall, where practicable, include iden-
tification of the statutory basis" for an expenditure is intended, in
part, to aid in this identification process.
If the Governor desired to appropriate funds for an item which required
a change in law or a program otherwise defined in law he could, under
the amendment, still so act but would have to include the proposed
amendment or abrogation of substantive law in separate, nonappropriation
legislation which would be subject to the same scrutiny and process as
any other bill. In such instance, the Legislature could also respond to
the Executive's legislative initiative by amending or rejecting the
proposed, nonappropriation legislation and adding to the appropriation
bill an item related to the subject addressed in the nonappropriation
bill and in the related appropriation.
Concomitantly, the Legislature would be required to estimate the effect
on the Executive budget, as a whole, of any additions it makes to the
Governor's appropriation bills. Such estimation would have to indicate
the source of moneys sufficient to pay for any such Legislative addi-
tions such as relying upon the Legislative rejection or reduction of
other items proposed by the Governor in the budget.
Thus, this legislation does not turn the budget making process into a
level playing field; it maintains the Executive budget making process,
driven by the Governor. However, it is intended to ensure that the Exec-
utive's appropriation bills are limited to developing and implementing a
financial plan as envisaged by the Constitution and not utilized as an
annual exercise in side-stepping existing law.
PRIOR LEGISLATIVE HISTORY: None
FISCAL IMPLICATIONS: None
EFFECTIVE DATE: These amendments would take effect after passage by
two consecutively elected legislatures and the approval of the voters by
referendum.
