Finished, in an Unfinished Sort of Way

Have New York state lawmakers really delivered the budget on time—or is it just their little April Fool’s Day joke?

‘State Has an On-Time Bud- get,” proclaimed the front page of one local newspaper on the morning of April 1, claiming that lawmakers “beat the clock” by reaching agreement on the upcoming year’s budget before their end-of-month deadline. Variations on this same announcement crowded the front pages of nearly every newspaper in the state, their stories using such descriptors as “historic” and “startling” to describe the event.

In most states, meeting such a deadline is little cause for celebration—let alone front-page headlines—but in New York, legislators have treated deadlines in the budget process as midpoints rather than finish lines for more than 20 years. And despite this longstanding disregard for the state’s financial guideposts, there have been few complaints from the constituents of the state’s elected officials—at least not the sort registered in voting booths, where dissatisfaction tends to receive the most attention. Each year, for more than two decades, the deadline has passed with a shrug of the shoulders from lawmakers and constituents alike. By the time the next election loomed, the sins of the past were forgotten and most incumbents were overwhelmingly reelected.

Then came 2004, a year featuring the release of highly publicized studies on state government effectiveness (in which New York faired very poorly), a slew of reform-centered campaigns and sudden media attention on the state government’s dysfunction. Though most incumbents still retained their seats in last year’s elections, a chorus of closer-than-anticipated races and several unexpected upsets echoed throughout the Capitol. So, with another election year looming in 2006, lawmakers buckled down and gave their constituents what they wanted: an agreement (with time to spare) between the Republican Senate and the Democrat Assembly on the state’s spending practices.

Or did they?

“We have a complete budget,” announced Senate Majority Leader Joseph Bruno (R-Brunswick) last Friday, only to add later on that, “some discussions are ongoing.”

Among those “ongoing” discussions are many of the funding issues that have repeatedly stalled budget negotiations in the past, allowing New York to attain the longest streak of late budgets in the nation. While the Senate and the Assembly were able to reach an agreement on around $105 billion of spending for the upcoming year, some of the most hotly contested funding issues, to the tune of around $1.5 billion, remain undecided.

In the past, such issues were determining factors in completion of the state budget, with Assembly Speaker Sheldon Silver (D-Manhattan) notoriously avoiding discussion of other parts of the budget until the two halves of the Legislature had reached agreement on the most controversial aspects of their spending plans. Once these differences had been overcome, the rest of the budget often fell into place quickly. This year the routine was turned on its head, however, as lawmakers prioritized negotiation of many of the issues they were close on from the beginning and postponed their more formidable differences.

These areas of early agreement include more than $180 million in increased fees for motor vehicle owners—such as hikes in title fees and all-terrain-vehicle registration—and continued taxation of clothing items costing less than $110. Such clothing had once been exempted from the state sales tax, but this tax break was suspended “temporarily” in 2003 and has yet to return. The Legislature’s budget proposal also raises taxes on mortgages and increases the state’s spending on education by more than $800 million.

Early agreement on this aspect of the Legislature’s spending plan—$322 million more than Gov. George E. Pataki had initially proposed for education in his executive budget—likely will be a pleasant surprise for schools, as late state budgets force schools to calculate their own budgets without the benefit of knowing how much funding they’ll receive from the state. Homeowners’ minds might be eased by this early agreement, too, as a definitive level of state funding will allow schools to better gauge how much funding they’ll have to draw from local homeowners for the coming year.

The Legislature also rejected several aspects of the governor’s spending proposal outright, including a $500 tuition increase for state and city colleges, cuts in the Tuition Assistance Program and a schedule of annual tuition increases for future students. A higher tax on wine sales also was rejected, as well as the governor’s proposal to eliminate sales tax on energy-efficient appliances—a move that has angered some environmental groups. Differences between the governor’s spending perspective and that of the Legislature were most apparent in the area of health-care funding, as the two entities remained far apart in their approaches toward handling the local costs associated with Medicaid and nursing homes.

The governor has until April 12 to veto portions of the Legislature’s budget proposal and send lawmakers back to the bargaining table—an option that only adds further doubt to the “finished” classification of the budget.

Also among the hanging uncertainties is that pesky $1.5 billion that the Legislature couldn’t find agreement on and decided to put off. This piece includes $1.1 billion in federal welfare funding for children, $150 million in funding for the state’s Environmental Protection Fund and more than $200 million in federal funding for election-system reform. The money for election reform is in significant jeopardy, as this is the second straight year that lawmakers have been unable to move past their party lines and find agreement on reforms to the state’s voting system, and New York stands to lose this chunk of federal money if the impasse remains [“Mired in the Machines,” Newsfront, March 17].

Additionally, a recent court decision that requires an increase in funding for New York City schools by $5.6 billion each year was also ignored in the Legislature’s budget, as the order is currently being appealed by Pataki.

Still, according to Bruno, the Legislature’s pseudo-budget—in all of its unfinished, negotiable glory—represents the best efforts of state lawmakers at living up to the responsibilities of their positions. This budget, he said during a recent appearance, is a “testament” to the state Legislature.

And in that, the local lawmaker may have uttered one of the most honest statements of this April Fool’s Day.

—Rick Marshall

There’s High Water and There’s High Water photo:John Whipple

While much of the state, and even nearby neighbors in Rensselaer County, suffered from serious flooding this weekend, other areas were barely touched. This stretch of the swollen Hudson, taken Sunday, may not look flooded at first glance, though it has covered the entirety of the boat launch in the Corning Preserve.

Faith in Our Cities photo:John Whipple

The Rev. Craig French, president of ACTSyracuse, weilds a ketchup bottle symbolizing New York’s 57 counties, 56 of which are losing population density in their metropolitan centers. ACTSyracuse was one five regional organizations sponsored by the Gamaliel Foundation that gathered in Albany on Tuesday (April 5) to announce a statewide network focused on improving the economic future of core cities and population centers.

The groups, including the Capital Region’s ARISE, have congregations as members and focus on regional economic justice [“Tech City,” Newsfront, Nov. 26, 2003]. The statewide effort will focus on “the interdependence of urban centers, main streets, suburbs, rural areas and open spaces” and takes as a core principle that “fiscal responsibility requires that development should first occur within established urban and suburban population centers where essential infrastructure already exists.” They also want to make sure the poor, minorities, and residents of distressed neighborhoods are at the table.

So some organized congregations have come to the sprawl issue (though without calling it that). What might they recommend, policywise? The group has been working with author David Rusk [“Think Regionally” in “Schenectady Outside the Box,” Jan. 6], and his criticisms of fragmented, “little box” government were echoed by Deb Baumes, president of ARISE, at the press conference. Expect to hear the terms “regional” and possibly “tax-sharing” a fair amount in the near future.

—Miriam Axel-Lute

Tuned out: Dennis Karius. photo:Teri Currie

Master of Whose Domain?

WRPI radio host falls prey to copyright hysteria—without ever violating the law

Dennis Karius, a former host of The Portside on WRPI public radio, recently found out just what sort of a climate of fear the recent media and legal attention to copyright violations has spawned. Earlier this year, he lost his radio show as a result of airing audio that he recorded off his television from C-SPAN.

The WRPI Executive Committee, which does much of the decision making for WRPI, heard from someone (not C-SPAN) who heard Karius’ Jan.19 show, saying that he improperly used material from C-SPAN. At a meeting of the E-Comm about a week later, the committee voted for his permanent removal as a result of “gross violation of federal copyright law and consequently WRPI’s policy.”

On Feb. 1, Karius was informed of E-Comm’s decision via an e-mail message from the president of WRPI, Jeremy Kaufman. Kaufman made it clear that Karius was physically banned from the WRPI station and that neither the cancellation of The Portside nor his banishment would be under review. Karius would be allowed to explain his actions after the fact, but did not get a chance to present a defense before his removal. Until the day he was informed, he did not realize that any problem had arisen.

Immediately, Karius began contacting his scheduled guests. Then he set to researching copyright law. He is convinced he did not commit any offense by airing the excerpt. National copyright experts, and even C-SPAN’s own policies, say the same.

Anything with a government representative speaking is considered public domain, especially anything that comes from the Congressional press gallery. Since the audio Karius used was a clip of Condoleeza Rice’s nomination questioning, featuring Senator Barbara Boxer of California, it was public domain. Public domain refers to something that lacks copyright or patent, and can be used by anyone however they wish.

Taxpayers pay for the House and Senate to be wired. The audio is sent to a radio-television gallery, where it is available for the press to record and transmit. The process is coordinated so that the members of the press may plug into this audio and essentially share the same information, thus keeping the floors of Congress open to the people. Journalists, radio hosts, even academics, often use public-domain material in their work.

“There’s a big difference between airing the words of our members of congress and airing, say, a Michael Jackson concert at Pepsi arena,” Karius said. Rice’s speech on the floor of the House and Senate is in essence owned by the people.

C-SPAN does not dispute this. “The audio of the House and Senate is obtained from the House and Senate. We do not make a copyright claim on this audio,” C-SPAN representatives said in an e-mail message to Metroland. What is protected is their process of distributing. “C-SPAN’s transmission of this signal is protected by law and cannot be intercepted for the purposes of retransmission.”

Siva Vaidhyanathan, assistant professor of Culture and Communication at New York University and author of Copyrights and Copywrongs, also said there is no problem with recording the audio and airing it. “The legal restriction has to do with stealing cable service—tapping into a direct stream,” said Vaidhyanathan. “It’s a very different restriction than copyright.”

As long as the material Karius recorded and aired is within the public domain, he is free to use it as a radio host. “He did what any citizen can and may do. C-SPAN is our only source of the sounds of Congress, so we should feel free to use it for reporting and commentary,” Vaidhyanathan said.

E-Comm claimed at the time that Karius used the C-SPAN webstream to air the audio. When asked to comment later, Kaufman said he thought it may have been recorded from television, but he couldn’t be sure. Karius was never given a chance to tell E-Comm where the material came from, something he said he’d have been happy to do.

On March 15, the New York Civil Liberties Union Capital Region Chapter sent a letter to the president of RPI, Shirley Ann Jackson, with a copy sent to WRPI, with its concerns about Karius’ lack of due process in the matter. Though RPI is a private institution and WRPI has the right to cancel Karius’ show at any time, the NYCLU would like the school to show the same respect to its radio hosts that an individual would receive under the laws of this country. As executive director Melanie Trimble stated, “[Karius’ removal] lacked any procedural due process, which an educational institute should certainly zealously safeguard.”

President Jackson is currently out of the country leading a delegation to Asia, and has not yet responded to the letter.

Much of the WRPI Executive Committee is composed of RPI students who are not necessarily experts in the field of Federal Copyright Law. Indeed, Kaufman seemed confused about what was specifically violated and how, but said, “It is our interpretation, as well as the interpretation of RPI’s legal counsel and a lawyer specializing in communication, that the material aired by Dennis was a violation of C-SPAN’s intellectual property rights even though we are a public radio station.”

Karius said he understands why E-Comm was hypervigiliant. He said he did not want to damage WRPI’s reputation, and is still a supporter of the station. In Karius’ opinion, the reaction to his show was perhaps caused by the ever-increasing sensitivity of information and copyright issues. “I feel they overreacted, but I don’t fault these students. E-Comm reacted like any board of trustees who were just entrusted with a precious institution,” said Karius.

Karius isn’t just going to let the issue drop, however. He sought advice from an attorney with the National Lawyer’s Guild who, like Vaidhyanathan—and C-SPAN—disputes WRPI’s legal claims. He said it’s less about getting his show back, and more about pointing out the climate of paranoia these issues can create.

The value of public speech on our airwaves and the importance of keeping our government branches in check can’t be overlooked, said Karius. He said that since most Americans cannot listen to all of C-SPAN’s “gavel to gavel” coverage, someone has to pick out and present to people important segments of interest. Being able to make people aware of what the government is up to by means of media is a constitutional right, said Karius, and he doesn’t want to see it dissolve. “I think I can do more good by empowering others to do what I did.”

—Kevin Abbott

Water Over the Falls?

Fourteen years after its license expired, a Cohoes hydro plant has its first public hearing, as a latecomer struggles to have its more ambitious alternative considered

The hydropower plant at School Street in Cohoes is nearly 100 years old. When its current federal license expired, George H.W. Bush was president and the plant was owned by Niagara Mohawk. Its license wasn’t renewed because a coalition of environmental groups filed suit to block it, and several other plants, from receiving the needed state water-quality permit. Among their concerns: The current dam leaves a mile of the Mohawk river and the historically significant Cohoes Falls dry most of the year, and the plant’s turbines chew up unacceptable amounts of fish, especially migrating blue-back herring.

Since 1991, the plant has kept operating on one-year extensions while the groups that filed suit went through settlement processes to come to acceptable relicensing terms for the projects “basin by basin.” The projects were done one by one because of limited resources to conduct the necessary studies, and so there would be no horse-trading between improvements on different rivers, said Bruce Carpenter, executive director of New York Rivers United, a party to the original suit.

By the time the process got around to Cohoes—one of the last to be addressed—the plant had changed hands several times, most recently to a Canadian company, Brascan, which owns 72 hydro plants in New York state. No changes or improvements had been made to the plant’s environmental functioning.

A lengthy settlement process involving the original parties to the lawsuit—New York Rivers, several state agencies, other environmental groups—came to a conclusion in December. The settlement calls for 100 to 250 cubic feet per second to be released over the falls, increasing to 500 cfs during the day on summer weekends and holidays. (Free flowing, the river would send around 800 cfs over the falls in the middle of the summer and tens of thousands in the spring.) The settlement involves some improved fish diversion measures, creation of cultural amenities around the falls, and cleanup of PCBs in the diversion canal within five years.

“These settlement discussions have done more to restore rivers in New York state than any other program in the last decade,” said Carpenter, adding that the Cohoes settlement agreement is a “good proposal” that he fully supports.

But something else also had happened since 1991. Another power producer had taken interest: Green Island Power Authority recently developed an alternative plan for a new plant at the site and hopes to win the license from Brascan. GIPA’s plan calls for more water over the falls (the settlement agreement’s maximum flow is GIPA’s minimum, and it promises to go through a public process to determine how much is needed to “make the falls look like falls again”); what the authority’s engineer claims is a 100-percent successful fish-exclusion screen; its own set of cultural amenities; and immediate PCB cleanup. The new plant would be built underground, and would produce more than twice as much power as the existing plant. GIPA promises to sell 50 percent of that power to local governments and nonprofits in long-term fixed-rate contracts to help them control energy costs. A new dam would be built closer to the falls, so much of the currently dry stretch would be underwater.

“I think there’s a very clear choice here,” said Congressman Mike McNulty (D-Green Island). “The plan sponsored by GIPA creates more power, creates more jobs, saves more fish, enhances the beauty of the falls, and would be operated by a public-benefit corporation based locally.” Such disparate politicians as Rep. John Sweeney and Sens. Charles Schumer and Hillary Clinton, Senate Majority Leader Joe Bruno and Assembly Speaker Sheldon Silver have expressed their support for the Green Island proposal.

But for now, it may never get a chance to compete, since under federal regulations competing proposals needed to be filed in 1988, and the Federal Energy Regulatory Commission has declined to look at its plans. Unless Brascan is turned down outright for its water permit, it would take more complex measures—McNulty is talking lawsuits and Schumer is discussing legislation—to allow GIPA’s plan to be considered.

For his part, Carpenter said it would be better if the Brascan plan just went ahead because a good plan in the hand is worth a potentially better one that may not qualify, hasn’t been studied, and could be delayed for years or even decades by lawsuits from Brascan.

The first public hearing on the Brascan settlement agreement and state water-quality permit will be held by the Department of Environmental Conservation, next Wednesday (April 13) at 7 PM at the Ukrainian Hall, 1 Pulaski St., Cohoes.

—Miriam Axel-Lute

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