Assemblyman Richard A. Smith has almost drained his life savings, so he's trying to take out a loan. Sen. Thomas K. Duane has stopped going to restaurants and Broadway shows, but he's still nervous about next month's rent. These days, New York's 211 state legislators are literally working for slave wages: They haven't been paid since the end of March.
Unless courts intervene, the lawmakers will not be paid until they pass a state budget, which is late for the 15th straight year. That was the deal they cut last winter with Gov. George E. Pataki (R): He gave them a 38 percent pay raise, and they agreed to forgo their fatter paychecks whenever the budget process drags past April 1.
They'll get their back pay once there is a budget, but it is already 54 days overdue, with no signs of movement.
A judge recently ruled that the pay freeze is an unconstitutional violation of the state's separation of powers doctrine, "threatening to impose on the Legislature a budget that is not the product of thoughtful deliberation and debate." But the brouhaha also has illuminated Albany's widely criticized political culture, in which the "Three Men and a Budget"--Pataki, Assembly Speaker Sheldon Silver (D) and Senate Majority Leader Joseph Bruno (R)--make most decisions behind closed doors.
The joke around the statehouse is that the other legislators are finally getting paid a fair salary for their work.
In Albany, where public hearings are rare and committee hearings are often irrelevant to the final result, the state budget is hardly ever a "product of thoughtful deliberation and debate." The pay freeze tradeoff--which also included a charter schools bill that no one in the rank and file had read--was typical of the backroom leadership deals that the New York Legislature may not have invented, but seems to have perfected.
"The New York Legislature is the closest thing to non-representative government you'll find in America today," said Hofstra Law School professor Eric Lane, a former counsel to Senate Democrats. "Sure, the pay freeze is ridiculous. Everything in Albany is ridiculous. There's no debate. There's no discussion. It's a stultifying place to be a legislator."
Still, the paychecks are sweet, when they arrive. New York's lawmakers now make $79,500 a year, the second-highest in the nation. About three-fourths of them also get "lu-lus," extra money for chairmanships and other positions, which brings the average salary to almost $90,000. Add to that per-diem stipends starting at $89 a day for their time in Albany, plus generous federal tax breaks for legislative expenses.
And the Legislature is only in session a few days a week, for about six months a year; many legislators have second jobs.
These days, though, they are feeling the pinch of no pay, and 14 Democrats filed a lawsuit last month challenging the wage freeze as unconstitutionally coercive. Duane is HIV-positive; some of his medical care is not covered by insurance. Another plaintiff has a child with cerebral palsy; others have tuition bills to pay. They say withholding salaries is a form of blackmail, requiring them to choose between their consciences and their mortgages. They say Pataki is just trying to focus attention on the timing of the budget process, distracting attention from the substance of his cost-cutting $72.7 billion budget plan.
"This is just a game, and it's a very dangerous game," said Rep. David F. Gantt, a ninth-term Democrat from Rochester who chairs the transportation committee. "We shouldn't be forced to choose whether we want to serve our constituents or feed our families."
Last week, a state judge in Brooklyn agreed, ruling that if even one legislator takes personal finances into account when considering the state budget, "the entire process is tainted." None of the 14 plaintiffs voted for the pay freeze last December, but Judge Richard D. Huttner wrote that lawmakers who did "improvidently and unconstitutionally incapacitated the Legislature from performing its duty as a representative body."
Pataki and Attorney General Elliot Spitzer (D) are appealing the judge's ruling, so the freeze remains in place for now. But Silver, who helped shepherd the deal that created it, nevertheless called the decision to repeal it "a victory for good government."
Since 1974, Democrats here have controlled the assembly, while Republicans have controlled the Senate. Critics of this divided and bitterly partisan Legislature say its process is already tainted, that it is already incapable of "performing its duty as a representative body." And Pataki is a critic with experience on the inside. For eight years, he represented Peekskill in the assembly, learning firsthand the powerlessness of the minority in Albany. Then he served two years in the Senate, where he was frozen out by GOP leaders resentful that he had unseated a Republican incumbent. When he was elected governor in 1994, he immediately promised to force the Legislature to start passing budgets on time.
"The governor does not think legislators should be suing for their pay," said Michael McKeon, a spokesman for Pataki, who is continuing to receive his own $179,500 salary. "He thinks legislators should try working for their pay."
Rank-and-file legislators don't have much to do with the budget, except to beg their leaders to support "member items" that bring pork to their districts. Three men control that process, and as Pataki has toured the country to boost his national profile, he has only met with Silver and Bruno three times this year.
In Albany, committees generally do whatever the leadership asks; they don't even file committee reports, because there is rarely anything to report. In private meetings, the leaders and their staff hash out the bills they want passed, then send them to the floor, often the day after they're printed. There rarely is any debate. There are no amendments. And bills almost never fail.
This year, after Pataki proposed his budget, Silver's assembly Democrats passed a more expansive plan that would add about $3 billion to the bottom line, and Bruno's Senate Republicans proposed restoring about $1 billion in education and Medicaid cuts. But there is no evidence of any progress toward a deal, and some insiders predict the state may break its 1997 record, when the budget was more than four months late. The pay freeze is only increasing partisan tensions; on Monday, angry Democrats threatened to hold up a routine budget extension in order to cut off Pataki's pay, although they backed down Wednesday.
The original goal of the pay freeze was to speed up the budget process. But if anything, it seems to be slowing things down. Pataki seems content to wait for the new financial pressures to force legislators to agree to his spending cuts, but the Democrats seem even more resolved, in part because they don't want to be accused of caving in to get paid.
"I don't care if I never get paid; I can't pass a budget like that in good conscience," said Rep. Lena Cymbrowitz, a Brooklyn Democrat who just started her first term. "I'm not going to cut a tuition assistance program. Our adolescents are our future legislators."
They could be. But they might prefer a job that comes with a steady paycheck.
"It's a pretty bizarre situation, not getting paid," said Rep. Harold C. Brown Jr. of Syracuse, chairman of the assembly's GOP caucus. "But it isn't the first bizarre situation around here. I think the constituents are saying: 'You asked for it. Now deal with it.' "
CAPTION: Failure to pass New York State budget has Sen. Thomas K. Duane tightening his belt due to some strings the governor tied to the legislators' last raise.