How the Nation's Most Dysfunctional State Government Blocked Medical Marijuana (And Campaign Finance Reform)

Earlier this year, New York looked poised to become the 19th state to legalize medical marijuana. The state Assembly passed a bill by a 99-41 margin June 3. A Quinnipiac poll taken that week indicated that 70 percent of New Yorkers supported the idea. And in the state Senate, the Republicans who had blocked medical-marijuana measures the three times they’d passed the Assembly now retained power only by allying with five renegade Democrats—one of whom, Diane Savino of Staten Island, was the bill’s sponsor. Savino repeatedly said she believed she had enough votes to pass the bill, and would bring it to the floor when the right time came.

That time didn’t come. When the state Senate adjourned early in the morning of June 22, the bill had never reached the floor, despite the renegade Democrat faction’s leader, Jeffrey Klein, cosponsoring a more restrictive revised version. Another measure, to reduce the penalty for marijuana possession “in public view” from a misdemeanor to a $100 fine, also died without a vote in the Senate.

Activists and legislators say they don’t know exactly what happened. "The only thing we can conclude,” says Drug Policy Alliance state director Gabriel Sayegh, is that Klein couldn’t reach an agreement with Senate Majority Leader Dean Skelos to allow a vote, and Gov. Andrew Cuomo did nothing to help.

Medical-marijuana legislation hasn’t gotten a vote in the Senate any time since it was first introduced in 1997, says Julie Netherland of New Yorkers for Compassionate Care, and “this year wasn’t any different.” One legislative staffer called it a combination of “Republican recalcitrance” and that “the governor didn’t indicate he was superenthusiastic about it.” Skelos told patients who visited his Long Island district office that Cuomo didn’t want it, says Douglas Greene, legislative director for Empire State NORML.

Neither Skelos nor Savino returned calls from AlterNet, but Savino told a cable news channel June 24 that “there was overwhelming support for medical marijuana and that didn't move forward, because the governor didn't want to do it.” Cuomo’s main public statement on the issue has been that he opposes medical marijuana, but had an open mind.

To state Senator Liz Krueger (D-Manhattan), the medical-marijuana measure was just one of an “endless list of progressive bills that never had a chance” in the Senate. The upper house also rejected or ignored a campaign finance reform bill, a ban on hydrofracking for natural gas, prohibiting the use of BPA plastic in baby toys, and a Cuomo-backed measure that would have guaranteed abortion rights if the Supreme Court overturns Roe v. Wade.

While the Democrats who split from the party for Klein’s “Independent Democratic Conference” faction claimed that allying with the Republicans would help get progressive measures through the Senate, Krueger says, “that never made sense to me, and it’s not true.”

Impasse in Albany

The impasse resulted from New York’s designed-to-be-divided state government, often called the most dysfunctional in the nation. In the predominantly Democratic state, Democrats dominate the Assembly, but the Senate is gerrymandered for a Republican majority. Every Senate district north of New York City has close to the legal minimum population, while every one in the city has close to the legal maximum. The GOP’s cartographers also crafted a Republican seat in southwest Brooklyn by excising the public housing projects of Bensonhurst and Coney Island. Those were attached to Savino’s Staten Island district, which is made contiguous by only a seagull-pecked sliver of shoreline between a highway and the ocean. The Democrats managed to win a majority in 2008 and 2012, but were thwarted both times by senators bolting the party—most of them recipients of massive moolah from New York’s real estate lobby.

The result is a system where much legislation is “one-house bills” with no hope of succeeding in the other chamber. The Assembly regularly passes bills to let New York City strengthen its rent control laws. The Senate, meanwhile, this year passed the “Public Assistance Integrity Act,” which would prohibit welfare recipients from using their cash cards to buy tobacco, alcoholic beverages, or lottery tickets. These people should not be permitted to spend their taxpayer-supplied money on lap dances, said a Skelos press release.

If anything gets done, it’s either by spectacular arm-twisting by the governor (as he did with same-sex marriage last year) or, most commonly, by last-minute negotiations among the “three men in a room”: the governor, the Senate majority leader, and Assembly Speaker Sheldon Silver. What they agree on gets crammed into omnibus bills nicknamed “One Big Uglies” and voted on in wee-hour marathons before the session closes.

The system is impressively corrupt. Three of the four Democrats who switched parties in 2009 are now in prison. Longtime Senate Majority Leader Joseph Bruno resigned in 2008 with a felony indictment looming; his conviction was overturned in 2011, but he was reindicted last year. Malcolm Smith of Queens, one of the five members of the Independent Democratic Conference, was arrested in April on bribery charges. Assemblymember Nelson Castro, indicted for perjury in 2009, wore a wire for most of his four years in office. He resigned in April after getting another Bronx Democrat, Assemblymember Eric Stevenson, charged with taking $10,000 from adult daycare center owners to introduce a bill to bar their competitors from opening similar facilities.

The larger-scale corruption is legal. The real estate business forms the biggest bloc of contributors to state political campaigns. In 2010, one leading lobbyist boasted, landlords “basically emptied our piggybanks” to help the Republicans retake the Senate. They benefit from a loophole in state campaign finance laws: Corporations are not allowed to contribute more than $5,000 to a candidate, but landlords often set up limited liability companies for different pieces of property—and each LLC can donate the maximum. Billionaire landlord Leonard Litwin gave almost $2 million in 2012, including $500,000 to Gov. Cuomo. He once gave Malcolm Smith $40,000 in a year when he was running unopposed.

In return, the industry wants tax breaks and either weakening rent controls or blocking attempts to strengthen them. (A 1971 state law bars New York City, which has had a chronic housing shortage since World War II, from passing rent regulations stricter than the state’s.) In January, the legislature approved a One Big Ugly omnibus housing bill that carved out tax exemptions for five luxury buildings under construction in Manhattan. That means that the owners of two $90 million penthouses across the street from Carnegie Hall will get $2.4 million in tax breaks intended to subsidize the construction of affordable housing. The bill’s bipartisan sponsors, Sen. Martin Golden of Brooklyn (R-Brooklyn) and Assemblymember Keith Wright (D-Harlem), both claimed they had no idea how that provision ever got in. But four of the developers involved gave more than $440,000 to state campaigns last year, and about $675,000 in 2010.

“That’s why we don’t have campaign finance reform,” says Krueger. “Pay to play is at the bottom of a lot of legislation.”

Gov. Cuomo's Shadow

Over this looms the figure of Gov. Andrew Cuomo. It would not take an Edward Snowden or Bradley Manning to reveal that he has presidential ambitions. He appears to be positioning himself as a “Bloomberg Democrat,” liberal on social issues but “fiscally responsible” in a way that pleases the plutocrats of Wall Street and real estate. His two biggest priorities since he took office in 2011 have been legalizing same-sex marriage and cutting state workers’ pensions.

This year, the governor’s top concerns were gun control and his proposals to establish tax-free zones for businesses on state university campuses, to open gambling casinos, and a 10-point women’s-rights package that failed because the Senate rejected its abortion-rights provision and the Assembly refused to divide it into separate bills. Cuomo casts himself as a crusader for open, honest government, but he signed off on the blatantly gerrymandered redistricting plan, he tacitly supported the Klein faction’s split with the regular Democrats, and he waited until there were less than 10 days left in the session to introduce his bill for public financing of campaigns in the Senate. Several observers speculated that he really didn’t want to see it passed.

The one marijuana measure Cuomo supported was the bill to decriminalize marijuana possession “in public view.” Since 1977, possession of less than 25 grams has been a violation carrying a $100 fine—but smoking or possessing it in public is a misdemeanor. In New York City over the last 15 years, police have used that loophole to arrest more than 500,000 people on petty pot charges, mostly young black and Latino men.

The Drug Policy Alliance backed that bill on the grounds that it would eliminate most of these arrests—but so did Mayor Michael Bloomberg and city Police Commissioner Ray Kelly, the prime architects of the pot-bust policy, who normally contend that any let-up in police stop-and-frisk practices would plummet the city back to the bad old days of the late-1980s crack era.

Cuomo supported the bill but did not make it a priority, says Empire State NORML’s Douglas Greene, who believes it was a ploy to “prevent stop-and-frisk reforms” by “releasing the pressure a bit.” Bloomberg and Kelly, says Krueger, “could come out and support it because they knew it wasn’t going to happen.”

The Independent Democratic Conference proposed a modified version that would apply only to New York City, says Krueger, but legislators from upstate cities like Rochester and Buffalo—which have seen their own share of racially skewed pot busts—quickly shot it down. That proposal “highlighted the stupidity of our thinking when it comes to marijuana,” she says. “It’s amazing how we continue to come up with the worst ideas to solve obvious problems.”

The medical-marijuana bill would have been one of the nation’s most restrictive, closer to New Jersey’s model—which bans home cultivation by patients and narrowly specifies the conditions, such as multiple sclerosis and AIDS wasting syndrome, that qualify—than to Colorado’s. The revised version introduced June 14 added more restrictions. It eliminated fibromyalgia, vomiting, dysphoria, and pain as valid reasons for medical use and dropped a provision that would have let people not registered as patients claim medical use as an “affirmative defense” if they were arrested.

The revised bill also would have limited the number of cultivation facilities in the state to 10 for the first two years. New Jersey, which is one-sixth as big as New York and has less than half as many people, allows six dispensaries. Many patients complain that is too few, especially as only one has opened since the law was enacted more than three years ago.

Empire State NORML still supported the bill, says Greene, but the revisions increased its reservations. Julie Netherland said it still would have ensured broad patient access, and that it would have had the entire medical-cannabis system administered by the state Department of Health was a strong point. But, she adds, restrictions have to be balanced against patients’ interests.

On cannabis issues, Cuomo appears to be positioning himself so he can’t be tarred as a hardline prohibitionist if the winds blow toward legalization, but he also doesn’t want to be branded as a “legalizer.” The medical bill, says Greene, was restrictive enough so it would have been politically difficult for him to veto it—so it worked better for him if the bill died without his fingerprints on the corpse.

Meanwhile, Krueger and several other legislators are preparing legislation to legalize, tax and regulate marijuana sales. Medical-marijuana advocates say they’ll be back again next year.

“Awareness of the issue is growing,” says Netherland, and she doesn’t think the “compelling need can be ignored forever.” But until a law is passed, she adds, “there are going to be a lot of people suffering needlessly.”