Albany, NY – Senate Facing Another Constitutional Fight over Lieutenant Governor

Albany, NY – New York’s Senate and the once little regarded post of lieutenant governor may be headed into a constitutional crisis — again.

Democratic Attorney General Eric Schneiderman is reviewing a rules change this week by the Senate’s Republican majority to limit the Democratic lieutenant governor’s power if there are tie votes over leadership.

The rule change would make it clear the Democratic lieutenant governor couldn’t cast the deciding vote for a new president of the Senate if a Republican retires, throwing the GOP’s 32-30 majority in a 31-31 tie. That challenges the power of the lieutenant governor set since 1777, which was the basis of the vice president’s role in federal government.

Schneiderman spokeswoman Jennifer Givner said Thursday that the request is under review. She wouldn’t comment on the review or how long it might take.

Whether that opinion will be made is also a question. Attorneys general tend to provide legal analysis only when issues are, in legal terms, “ripe.” That means when conflicting forces have engaged, not before.

And there may be little hope of a court settling the thorny dispute even for constitutional experts if it becomes engaged.

“I’m not sure the courts would intervene in deciding the rules of the Senate,” said Robert Ward, director of Fiscal Studies at the Nelson A. Rockefeller Institute of Government. “This would certainly be an extremely important rule, but that might not be enough to overcome the traditional reluctance to intervene in the inner workings of the Legislature.”

Courts cite the need to protect separation of powers and leave lawmakers to settle their own conflicts.

That would leave the highly partisan Republican and Democratic conferences of the Senate to work out a solution to avoid gridlock, which was rarely done on major matters during the last two tumultuous years in the Senate.

In the summer of 2009, a power struggle gripped the chamber and then-Gov. David Paterson appointed a lieutenant governor, which challenged widely held legal opinion that the constitution barred a governor from filling a vacancy in the office. Paterson won in the Court of Appeals and a coup of dissident Democrats created a coalition with Republicans and ended the 31-31 split. The dissidents returned to the Democratic fold when it was clear a Democratic lieutenant governor, Richard Ravitch, would breaks tie votes.

Today, each side cites provisions of the state constitution: Democrats note the powers of the lieutenant governor include a “casting” or tie-breaking vote in procedural matters, which they contend would include choosing a new leader of the Senate. That would leave Democratic Lt. Gov. Robert Duffy with the decision, should a Republican retire from the new GOP majority.

Republicans cite another provision that allows only elected senators to set the rules in their house, which would exclude Duffy, the running mate of Gov. Andrew Cuomo.

Bennett Liebman, executive director of Albany Law School’s Government Law Center, notes that a leading scholarly work on New York’s constitution provides some legal teeth for the Democrats.

Liebman’s notes “The Constitutional History of New York,” cited repeatedly by the Court of Appeals, finds a lieutenant governor apparently can break ties on “all matters not involving the passage of a bill … including the determination of election contests, senate rules, the choice of its officers, including temporary president …”

Democrats call the Republican rule change “a sneak attack on the constitution.”

“This is an issue that has brought New York to the brink of a constitutional crisis,” said Austin Shafran, spokesman for the Democratic minority conference. “If we were to get to a 31-31 situation, it would put New York over the edge, a direct threat to our constitution that has for over 200 years been a model for the U.S. Constitution.”

“I think that’s a little dramatic,” said Republican Sen. Thomas Libous of Broome County, the deputy majority leader. “I see no constitutional crisis arising out of a rule change.”

“It’s a political issue as far as I’m concerned,” Libous said in an interview. “We feel it’s a pretty straightforward issue … (Duffy) is not an elected senator, period. I can’t put it much more plainly than that.”