Is the state Legislature delegating, or derelict?

If you’re a New York voter tired of watching the Impeachment Channel and looking for something else to think about, consider looking to Niagara County on Thursday, when a state judge will hear oral argument in two lawsuits against the state Public Campaign Financing and Elections Commission which on December 1 issued sweeping “recommendations” that will automatically create a new $100 million per year public campaign financing program for the next statewide election, unless both houses of the Legislature and Gov. Andrew Cuomo miraculously act to block them before Christmas. There’s a lot at stake.

Press coverage of the state-appointed commission initially focused on the issue of fusion voting, the longstanding New York practice of allowing candidates to receive multiple party nominations. At first, Cuomo’s allies, appointed by him or other Democrats, seemed hellbent on eliminating fusion voting in apparent retaliation for the Working Family Party’s annoying habit of holding the governor accountable on policy. A story that offered Albany-style political intrigue, betrayal, and retribution lost some of its dramatic appeal after the commission, under political and legal pressure, decided to sidestep fusion voting in favor of adopting new vote-winning requirements for the recognition of parties that will likely achieve the same presumed objective of eliminating the WFP. 

The press has shifted its focus to the substance of the commission’s binding recommendations, which include many significant and often controversial changes to existing election laws and the creation of a new agency to administer the new program. 

Yet the legal fight is far from over. The Niagara County lawsuits reach beyond fusion voting to raise an issue that is arguably much more important: Did the Legislature violate the state constitution by delegating too much of its lawmaking authority to the commission?

Some background is in order. We are fortunate to live in a representative democracy. The theory is simple: since direct democracy on a large scale is impractical, we choose fellow citizens to represent us and make public policy decisions on our behalf. In exchange for the privilege of serving, our representatives are accountable to us through periodic elections. 

But what if our privileged representatives can’t agree on a contentious or complex issue, or aren’t particularly interested in accountability? Enter the time-honored “Blue Ribbon Commission” maneuver whereby legislators create “independent” bodies of “experts” to make “recommendations” for resolving thorny or complex issues. 

Over time, this common and clearly appropriate means of soliciting independent expert advice has morphed into something that often looks and smells a lot like lawmaking. At every level of government, we’ve moved inexorably from commissions that issue nonbinding recommendations, to commissions that make binding administrative decisions like those that close military bases, to commissions which can raise a limited number of public officials’ statutory salaries, and finally to bodies like New York’s Public Campaign Financing and Elections Commission, which have the express power to supersede existing statutes or write new statutes to create a major new program and administrating agency. 

Similarly, elected legislators’ role in turning controversial “recommendations” into law has become ever more passive. A process that once required legislators to review and vote on individual recommendations became one in which legislators enjoyed the political cover of a single up-or-down vote on a package, and finally degraded into the ultimate convenience of not having to take a recorded vote on anything specific at all.

The legal issue is clear: Did the Legislature’s delegation of power to the commission violate the state constitution? 

Opponents of the commission argue that Article III of the state constitution vests the power to make laws in the state Legislature alone. Acknowledging that the Legislature routinely delegates to administrative agencies authority to adopt rules “filling in the details” necessary to implement public policy, they assert that such delegation is permissible only when limited in scope and that agency rules must be consistent with public policy as established by the Legislature via a duly enacted statute. Similar, or higher, standards should apply to delegations of legislative power to independent bodies that are not administrative agencies with rulemaking authority. In sum, the opponents contend that the Legislature impermissibly granted the commission authority to make, rather than implement, legislative public policy.

The commission’s defenders counter that the delegation was both constitutional and consistent with longstanding practice. They argue that the commission’s enabling statute reflected the Legislature’s affirmative policy decision to establish a public financing program and contained appropriate criteria to guide and limit the commission’s discretion in executing that policy. The defenders also note, with evident relief, that the state’s highest court recently declined to review a lower court’s decision that upheld the Legislature’s creation of an independent salary commission endowed with arguably similar authority.

The court in Niagara County will soon decide whether the Legislature went too far.

Technical legal issues aside, we as voters need to ask ourselves some fundamental questions. Are we comfortable being subject to highly complex and controversial laws made by an unelected body? Should it make any difference that our elected representatives proved unable or unwilling to enact these laws through the regular process? Should delegation be the default for resolving difficult issues? If we object, who do we hold accountable, and how? 

Regardless of how we feel about the substance of campaign finance or any other contentious issue, we should hope the court will seize this opportunity to set forth practical guidelines for delegation that affirm and support the functioning of our democracy. New York’s voters deserve to know: When does legislative delegation become legislative dereliction?