State Legislature expected to seek to reassert its power in budget talks

ALBANY — The Senate and Assembly as soon as Friday will try to move many of Gov. Kathy Hochul’s nonfiscal policy proposals out of negotiations on the state budget after a decade of bristling at how former Gov. Andrew M. Cuomo jammed his policies into the budget process, state legislators say.

The opportunity to reset the dynamic between the executive and legislative branches will come when the Senate and Assembly release their responses to Hochul’s budget proposal. Although legislators say Hochul has been far more cooperative and collegial than Cuomo, they see this as the moment to seize to restore checks and balances in the budget process.

Hochul’s $216 billion budget proposal includes dozens of nonfiscal policy measures, such as an overall of the recycling program and restoring and making permanent the authority of restaurants to sell "drinks to go," a popular but temporary practice that kept restaurants afloat during the COVID-19 pandemic.

"The budget is a spending plan," said Assemb. Steven Englebright (D-Setauket). " I can tell you from going to our conferences and listening to the speaker that we are seeking to really reduce the number" of nonfiscal policy proposals.

"Cuomo was abusive in many ways, including in the budget," Englebright told Newsday.

In 2021, for example, the approved budget also contained Cuomo’s policies to make social service benefits available to immigrants without legal immigration status and to legalize mobile sports betting. In 2020 the budget included Cuomo’s proposal to make the 2% cap on property tax growth permanent. In 2016, the adopted budget included Cuomo’s proposal to allow Nassau County to sell its video slot machine rights to Aqueduct Racetrack for $43 million.

A governor’s extraordinary budget power dates to a 2004 Court of Appeals decision, which ruled then-Gov. George Pataki "could put substantial policy in the budget," said Albany Law School Professor Vincent Bonventre, who studies state constitutional issues. At the time, a dissenting opinion argued that "what he was doing was legislating."

Legislators could only hope to negotiate changes during budget talks. If they rejected the governor's policies and the April 1 budget deadline passes without agreement, a governor may impose his or her policies as part of emergency spending plans. If the legislature rejects those, they risk shutting down state government.

Sen. Todd Kaminsky (D-Long Beach) said he, too, generally believes that nonfiscal policy shouldn’t be forced into budget negotiations and he expects the Senate will seek to move some of Hochul’s policy proposals out of the budget. But he also said there is a value to using the budget talks "just to get things done," such as the plastic bag ban in 2020.

Hochul will get a look at the Senate and Assembly budget responses as early as Friday.

"Governor Hochul’s executive budget includes bold initiatives to embrace this once-in-a-generation opportunity to invest in our future, and we look forward to continuing to work with the legislature to finalize a budget that serves all New Yorkers," said Hochul spokeswoman Hazel Crampton-Hays.

Hochul’s nonfiscal policies include several measures supported in concept by lawmakers, including providing "gender-affirming treatment of incarcerated individuals" and allowing New Yorkers to use an "x" for the gender question on state documents.

"Many of us think those are good ideas, but many of us in the Assembly believe that those are issues best left to the legislature in recognition of our democratic preferences and constitutional preferences for a system of checks and balances," said Assemb. Charles Lavine (D-Glen Cove).

"There are any number of matters that we will not pursue in our one-house budgets that are in the governor’s budget," Lavine said. "That is not to say they are poor policies. It is simply to affirm that policy ought to be more in the house of the legislature."

Another example is Hochul's "extended producer responsibility" recycling plan, which mirrors a bill first introduced in January 2021 by Kaminsky. The policy proposal would require producers of paper products and other packaging to reduce their waste stream to landfills while paying more of the costs for recycling through fees.

Englebright said the recycling measure he co-sponsors in the legislature might be better to be debated and amended through several legislative committees, rather than in budget talks between Hochul and legislative leaders.