The discussions surrounding the regularity and legitimacy of the pay-raise package including its ethics recommendations seem to pivot off a sandy assumption. It should be asked first how does anything, no less something as important as these fiscal and policy provisions, satisfy the process prerequisites to qualify as a de jure “enacted” set of laws?

The process for constitutionally ordained enactment of laws is quite precise and well-settled. So, who “enacted” and how this so-called legislative package came to be remain critical issues that seem to have gotten lost or overlooked in the blustery debates so far. Regularity of process is a critical threshold principle that deserves blunt attention.

The discussion should therefore start with a focus on Article IV of the State Constitution: A bill becomes a law only after it passes both houses of the Legislature, and: (a) the Governor approves it; (b) vetoes it, but it is then overridden by the Legislature; or (c) 10 days pass after it lays on the Governor's desk, without (a) or (b) occurring. That exclusive law-enacting menu was declared “a model of civic simplicity” by the Court of Appeals in Matter of King v. [Gov. Mario M.] Cuomo, 81 N.Y.2d 247, at 252 (1993).

The 2018 legislative direction that was recently put in play purported instead to tuck into the overall budget package an authorization for a one-off delegation to an ad hoc “Commission” to “enact” prospective salary increases for legislators (and other high officials).

The Commission heeded public sentiment and statewide editorial nudging that objected to a stand-alone pay increase. It thus added a substantive policy component to the initial “authorization” and linked aspirational ethical reform features to the new pay scale in its published report. On its face, the report formally released in December is neither in a standard bill form nor in process how laws are generally “enacted.”

That said, the merits of the pay raise proposal are incontestably justified after 20 years of no increases in the base salaries at issue. Yet, the questionable means to the desired end runs squarely into the old adage that would make Machiavelli smile for its audacity. To be sure, the ad hoc Committee enjoys blue-ribbon credentials, yet it is an un-elected entity that purports to substitute its judgment, with no direct accountability under the constraints of the constitutional process, as if it were a “super-legislature” in lieu of the duly elected one.

Most of the commentary has been directed at the stand-alone or linked or de-linking of the double-header substantive changes issued under the aegis of the Commission. What has been largely missing is any real attention to the aforementioned threshold process requirements under Article IV of the State Constitution.

That longstanding and exclusive set of protocols were put in place and promulgated to insure transparency, direct accountability, separation of powers, checks and balances, and regularity of a publicly discernible process—mighty potent fundamental pillars of protection in any system of governance and law-making.

This facile and rather novel hand-off of the non-delegable duty to enact laws by other than the established constitutional protocols would not earn a “civic simplicity” medal under the State Constitution's ordained process, that was given the official stamp of approval by the state's highest court.

Many years ago, in a landmark ruling, dubbed the “Lulu” case, the Court of Appeals struck down legislators-flat-sum-expense allowances “in lieu of” individual vouchering. Matter of NYPIRG v. [Speaker] Steingut, 40 N.Y.2d 250 (1976). The supplemental payments were initially deemed “enacted” by being tucked into the annual budget process that year. There, the Legislature itself did the so-called “enacting.” Even so, the Court of Appeals “un-enacted” them, holding that method did not pass muster.

“[T]he prohibition against increases and decreases in legislators' compensation and emoluments during their terms of office would serve two salutary purposes,” so said the Court of Appeals: avoidance of self-serving conflicts of interest, and manipulation of the process. Matter of NYPIRG v. Steingut, id.

The 2018 budget seems to take no heed of these admonitions. And this time around there is a direct hand-off, granting the one-off Commission the authority formally to “enact” base-salary increases. The result: The contents of the Commission report are equated to an “enacted bill” that is to be “deemed” law, without satisfying the constitutional process menu.

Almost 20 years after the “Lulu” case, the court reinforced the necessity for the exclusive regularity of process concerning how a bill becomes a law when it struck down a venerable “recall” practice that had allowed the two law-making branches to engage in post-passage negotiations. Matter of King, 81 N.Y.2d 247. In that case, an after-the-fact “insiders” deal-making technique, albeit a longstanding practice, had allowed formally passed bills to find a route backdoor to the Legislature from the Governor's desk, without checking off any of the constitutionally prescribed boxes. The maneuver was held to violate “the nondelegable options for the Executive ['s, actions]” and thus “compromise[d] the central law-making rubrics by adding an expedient and uncharted bypass”(emphasis added). The lack of visible accountability and failure to comply with the process of specified regularity did not meet the “civic simplicity” smell test of the Constitution. Sound familiar?

In a twist, worthy of the Legislature's latest maneuver in trying to eat its cake and have it too, the Court of Appeals 20 years ago provided another lesson in stand-up governance. It upheld the explicit enactment of a self-incentivizing provision that required legislative salaries to be withheld until the Legislature enacted an annual budget for the State on time. The first time the sanction was sought to be implemented, litigation worthy of a “chutzpah” award was undertaken to nullify the Legislature's own enactment for withholding of its salary. The gambit failed, with a warning against “manipulation” of the constitutional law-making process. Matter of Cohen v. State of New York, 94 N Y 2d 1 (1999).

Law-making is just right when it emerges from an Occam's Razor principle of straight-line “civic simplicity,” not when it is squeezed through a Rube Goldberg contraption emitting undifferentiated sausage—a phrase sometimes used to “caricature-ize” the operative legislative process in making law.

Joseph W. Bellacosa is a retired Judge of the New York Court of Appeals (1987-2000). He is the author of two of the opinions referenced herein.