Today Assemblyman Mike Gianaris and a handful of good-government groups released a letter outlining their belief that, like Dorothy in The Wizard of Oz, our lost and confused governor, David Paterson, has actually had the power to return everything in Albany back to normal all along. According to lawyers, part of the Public Officers Law gives the governor power to fill all positions left open before the end of a term — including lieutenant governor, the role vacated by Paterson himself after Eliot Spitzer's resignation. The relevant passage, Section 43, has never been used to fill the office of a lieutenant governor before, but Gianaris et al. say "Nothing in Section 43 indicates that it does not apply." Currently, whoever is temporary president of the Senate is technically governor, which is partially why Pedro Espada is so set on the gig. (Read more on that in Chris Smith's story on Espada in this week's issue of New York.) But if there was a separate, additional tiebreaker added to the mix, the current 31–31 Senate stalemate would be broken. Could this be real??
Supporters of this plan, which Paterson is said to be eyeing, say that combined with a relevant section of the state constitution, the wording clearly gives Paterson the power to make an appointment and break the stalemate. They anticipate a legal challenge from both Democrats and Republicans, neither of whom will likely be amenable to this, as it would amount to a loss to Paterson, among other things. But advocates say the court process would likely be speedy and that the governor would be "on very solid legal ground."
Not so fast, though, says Attorney General Andrew Cuomo. His office released a letter today arguing that the portion of the state constitution cited by Gianaris and his fellows actually bars Paterson from choosing a replacement lieutenant governor. "The Legislature did not authorize a Governor to bypass this provision of the Constitution and fill a vacancy in the Office of Lieutenant Governor pursuant to Public Officers Law," Cuomo said, in his finest legalese.
"In sum, we understand the apparent political convenience of the proponents’ theory due to the current Senate circumstances. In our view, however, it is not constitutional. In addition, contrary to the proponents’ goal, we believe it would not provide long term political stability but rather the opposite, by involving the Governor in a political ploy that would wind through the courts for many months."
Of course, if Cuomo is planning on a run for governor, which pretty much every single person in state politics anticipates, he has a vested interest in preventing Paterson from coming out of this situation looking like a savior. Judging by the speed with which the State Supreme Court has addressed legal scuffles so far in the Senate stalemate, there's no reason to think the resulting tangle would not be at least expedited, if not swiftly resolved.
Obviously, there will be no easy way out of this. But the idea that someone could have clicked their heels and made this all go away all along would just be too fitting, no?