The Man Who Shot Congestion Pricing (New Jokes Added)

“This is New York, sir. When the legend becomes fact, print the legend.” 

It’s like déjà vu all over again. The doyens of the mass media, joined by the forces of “good government” and spurred on by a Mayor who is far more blameworthy than their putative target, have pronounced Assembly Speaker Sheldon Silver guilty of unspeakable crimes against the City of New York. In this case, the specific charge, as articulated by the “progressives” at “The Daily Gotham” (talk about an unlikely ally for the goo-goos and the mainstream media) is “Shelly Silver Killed Congestion Pricing Dead”.  The charge has already attained the status of legend, and like the legend that Silver killed the Commuter Tax, it is now the unassailable received wisdom of all thoughtless observers. And like the legend concerning the Commuter Tax, it is also quite wrong.  

I think that it’s not unreasonable for a thoughtful person to conclude that Sheldon Silver is guilty of unspeakable offenses against the City of New York. Hell, I don’t think that it’s unreasonable for a thoughtful person to conclude that Sheldon Silver has been guilty of unspeakable offenses against the entire state.  But, in the death of congestion pricing, his role was somewhat different.

One can argue that, in this instance, Silver most resembled the regulars in the climactic episode of Seinfeld,  prosecuted and sentenced, under the Massachusettes Good Samaritan Law, to one year in jail for making fun of (rather than helping) an overweight man who was getting robbed at gunpoint.

Or, one can argue Silver was more like Patty Hearst, sentenced to prison for aiding and abetting crimes committed by those holding her hostage.

But, whatever the form of Sheldon’s Silver’s vicarious liability in the death of congestion pricing, it seems clear that his role here is hardly that of a criminal mastermind.

Years ago, as a backbencher, Shelly was famous for advising his aides that when they visited the Speaker’s rostrum, and the Speaker’s aides sent out for lunch, visitors should always order something, even if they weren’t hungry.


“You might get the wrong bag”.  

In this case Shelly got the wrong bag, but not the good kind. It was the sort of bag no one wants to have the burden of carrying, and he was left holding it. 

Let me make my Silver biases clear. During the Pataki administration, Silver’s position in the body politic of Albany’s Bi-Partisan Iron Triangle was as its most benign tumor. His presence may not have been something desirable, and certainly justified the periodic needle biopsy, but there were surely better targets for removal. During the Spitzer administration, this was clearly not the case, as the continuing existence of the triangle was itself called into question. Likewise, Silver’s current role is also uncertain, for it is hard to find a lump more benign than Governor Paterson. However, it seems clear that the consistent focus upon Silver, as opposed to Joe Bruno, as the source of our state’s ill health, is a little like worrying about a hangnail when one has a burst appendix.      

Silver, as his party's leader, followed the dictates of his party's conference, which overwhelmingly opposed the Mayor’s congestion pricing plan. A majority of Silver’s conference comes from the outer-boroughs and the suburbs, and (except for a couple of Brownstone-Brooklyn types) these members were virtually unanimous and outspoken in their opposition to congestion pricing. Many, rightly or wrongly, saw a vote for this legislation as a career ender, or, at the very least, an obstacle to a peaceful summer vacation.

Strong support for the plan seemed restricted to members from parts of the island of Manhattan, including, if you take him at his word, the Speaker himself. Although Shelly has sometimes made statements favorable towards motor vehicles ("A smart lawyer doesn't chases ambulances, he owns them"–No wonder the man gives a member item to Hatzolah), there is reason to find Silver's assertion of personal support to be credible, since the majority of voters in Silver’s district are believed to support the congestion pricing plan. Perhaps if Silver had used the muscle deployed by Council Speaker Christine Quinn in passing the plan through the City Council, he could have changed some minds.

Of course, the usual complaint about Silver from the mainstream media and the goo-goos is that he uses far too much muscle to accomplish his goals. But, surely legislative leaders can depend upon these same groups to come to their defense when the leader does as instructed by the editorial pages. Well, maybe.

Christine Quinn might have reason to doubt this. It seems clear that her efforts at the Council on behalf of the congestion pricing bill snatched victory from the maw of defeat. But what did those efforts constitute? Currently, the City budget is in negotiation; Quinn pretty much controls the spigot on  items a Councilmember might want to insert into the budget, whether to help constituent needs, assist pet causes (sometimes even including the Church of Scientology) or reward friends and relatives.

And not every interaction between Councilmember and Speaker is an implicit quid pro quo. The give and take between a leader and a member is rarely purely transactional; it is global and relational. A member knows the Speaker is a ready source for all kinds of assistance. “Even after the budget closed”, a Councilmember might recall, “didn’t Christine somehow find some funding for me last year when that emergency arose; who knows where she found that money? Hmm, perhaps I might need that favor again”.

And, despite her efforts doing exactly what the editorial boards called upon her to do, not one has seen fit to come to Quinn's defense for seeing to it that she continued to have the ways and means to accomplish their goals.

Member items take a bad rap for reasons both macro and micro. Globally, they are allocated in a manner which is clearly without equity, but this does not need to be so. And, in an individual sense, so many seem utterly without any justification. But there is a converse argument on that measure.

While one can argue that all budget allocations should be made strictly “on the merits”, in many respects such processes give only the appearance of objectivity. Surely, any time the Executive Branch of any government takes an interest in the results of a "Request for a Proposal" (RFP), you can be certain that that interest is likely to be replicated in the ultimate result. But a Councilmember, Assemblymember or Senator  is a local representative, likely to be acutely sensitive to the needs of their district. Who better to give discretion to for allocations in certain categories likely to fall through the gaps of any budget process?

One could set standards for such allocations, and even make them categorical. One could make the source of each earmark crystal clear to all who have any interest. Ideally, a member should be able to defend their allocations, and be judged upon them.

Of course, this is not the way it is done. But, the idea of member-based allocations is not per se indefensible. Just the actuality.

Another aspect of that actuality is the unfairness of who gets how much. In the State Legislature, the difference between allocations to members of the majority and minority in each chamber are usually quite striking, as sometimes is the less talked about disparity within each party.  One could combat such inequity by giving each member the same amount of money, or even using a needs-based system in certain categories. But, each such reform cannot help but erode the power of the leadership to accomplish the goals so favored by editorial boards and other exemplars of good government.  

The Quinn slush fund gets special ridicule because of the ludicrous nature of its execution (parking the funds in budget lines for non-existent groups), but similar funds do exist at the state level, disguised in a less embarrassing manner, but similarly without accountability. Quinn’s latest "reform" proposals are said by some to increase such accountability, but surely this comes at the cost of the persuasive powers of future speakers. One cannot help but think that a term-limited Speaker intent on rescuing what’s left of  her reputation might not find the potential problems of a future Speaker more compelling than the actual problems of this Speaker’s future.

Which bring to the fore a further consideration; part of the reason Quinn had an easier time than Silver in pushing congestion pricing is because almost every one of Silver’s members will chose to seek re-election this year, while next year, almost every one of Quinn’s members is forbidden by law to do so. Leaders can and will twist arms to accomplish their goals, but they rarely, if ever, ask their member to jeopardize their political future. A leader who does so will not likely stay as such for long. Members for whom a vote is problematic are usually let off the hook. So much easier when that’s not a consideration.         

In Silver’s case, the very size and heterogeneity of his conference gives disparate power to those blocks most concerned about a particular issue. The large number of minority members working in a bloc makes them formidable enough to kill a suburban county’s sales tax extension out of pique over an unrelated immigration issue. Suburban members are always susceptible to a Republican challenge, and therefore, like all marginal members, command disproportionate attention from the leadership, accounting for fiascos like the commuter tax repeal.

Sheldon Silver is a strong leader precisely because he serves his members’ needs. But, he cannot lead his conference where it did not want to go, even if he’d like to go there himself.

Ironically, the response of the editorial boards has strengthened Silver further. There are two ways to hurt Silver, in his conference, and in his district. The hits Silver’s taken personally, as an effigy for his conference, have made Shelly a stronger Speaker than ever. Even members who strongly supported congestion pricing admire Silver’s stoic ability to take a licking and keep on ticking for the team. But, the undeniable hit Silver’s taken in his district was largely mitigated by a vendetta-piece in the Daily News joyfully documenting the millions upon millions Silver’s brought to his constituents. This is supposed to make them angry? And even the most jealous junior member of Shelly’s conference probably believes Shelly earned that money last week.     

The guy who didn’t earn his dollar a year was the Mayor. The venom spewed by state legislators because of this issue was truly astonishing. What made it especially so was that the worst of it came from congestions pricing’s supporters.  “Keep the FDR and West Street free”, they told the Mayor, “the voters still think that’s in the plan, they’ll be furious when they find they were duped”. “I prefer not” replied Bloombleby the Scrivener. “Make it a pilot program” they cried apropos of LBJ, “let us get it in just one inch, and we’ve already broken the hymen; next time the yes will come easier, and they may even enjoy it”. “Just Say No” replied Mike the apostle of abstinence.     

In his worst moment, the Mayor took up the cry echoed by editorial boards, “If only Silver had allowed it to come to a vote, it would have passed”. The theory here is based on the idea that the Democratic Conference notwithstanding, Republican Leader Jim Tedisco could have delivered all 42 Republican votes for the Mayor’s plan. But Tedisco never had the abilty to deliver all his votes. Some of his suburbanites would have been livid at the suggestion, and might have even lost their seats if they'd done so. When word of the Mayor’s assertion got out, reporter's starting calling members of Tedisco's conference, and Tedisco’s membership went into a panic; as a result, Tedisco’s press secretary was forced to admit that not every member would have supported the bill. But, even if they did, that would have brought tally up to about 60, in a house where 75 votes is needed to pass legislation.  

No cigar. And, had there been a vote where Tedisco delivered, an expanded majority for Silver next time out.  

I wonder why the Democratic Conference doesn’t punish Bloomberg for this nonsense by giving him exactly what he's asked for, a straight up or down vote. 

All 42 Republicans? HA! Watch cowards like Lou Tobacco of Staten Island run for the hills. 

Even more to the point, the Mayor didn’t have the votes in the Senate either. Despite the $500,000+  Bloomberg gave the Senate Republican Campaign Committee, Joe Bruno could not deliver all his Republicans to pass this bill. Even votes usually within Bruno’s control, like Carl Kruger, were in open revolt.     

But the Mayor just knew he had the Senate Democratic needed to pass the bill, after all, how could Senators representing Manhattan say no? And, why would upstate Senators object?  

What the Mayor didn’t count on was that the impact of his $500,000+ donation to the Senate Republicans cut both ways. Hint to Mayor Mike: if you want to obtain the support of the Senate Democrat’s “Good Government Bloc”, maybe it’s time you wrote a check to support “Good Government” candidates, and refrained from sending them to Joe Bruno.    

But you say, Sheldon Silver should have at least let this legislation come to the floor for a vote. Certainly, the idea that a bill only comes to the floor of a chamber of the legislature when a majority of the majority party’s membership would support it if it came to the floor, is nonsense. Sometimes, a majority would support a bill if it came to the floor, and doesn’t want to let it on the floor for that very reason. Other times, the majority does not have the votes within its conference to pass a bill, but agrees to let it pass with the minority providing some of the votes. But what the forces of “good government" seem to be saying is that every bill which could potentially pass should be allowed to come to a floor vote. 

This is an interesting proposition, and, as I’ve implied, I don’t necessarily disagree. But I’m wondering where the mass media has been. For over two decades, State Senate Democrats have been trying to allow their bills, and sometimes even Republican bills, to come to the floor, knowing that, if there ever was an open vote, those bills would pass. The Republican response has been to throw up procedural impediments to their ability to do this. Can anyone ever remember a news story about this in a New York City daily? On those occasions when Senate Democrats have made such attempts, every last Republican has voted against the motions to discharge these bills from committee and bring them to the floor, EVEN THOSE REPUBLICANS WHO CLAIM TO SUPPORT THE UNDERLYING LEGISLATION.  Their excuse is always the same, that the discharge votes are "purely procedural" and therefore don’t count. Can anyone remember a New York City daily ever running a news story or editorial casting doubt upon such abject nonsense? No, not even when the underlying bill is a "good government reform" supported by those dailies.   

So, perhaps Silver should let every piece of legislation come to the floor if it could pass, even if dependent on Republican votes. Mind you, congestion pricing wouldn't have passed the Assembly, even with every Republican vote, and as I’ve said, it didn’t have every Republican vote by a longshot (perhaps the Mayor should have sent the Assembly Republican Campaign Committee more than $75,000, but, then again, that strategy didn’t work in the Senate) but it's a fair principle, so let's apply it.

There are many bills which would pass the legislature if only they were brought to a vote. Some even carry the names of a majority of the legislative membership and still never see the light of day. However, I’m not sure the editorial boards had such bills in mind before they finally found the inspiration to complain about legislation not being brought for a vote which would (unlike congestion pricing) pass if only given the chance to do so. Frankly, I think if they actually read these bills they might be thankful for the absence of legislative action. All those public employee union perk/pork bills would be budget busters.

Likewise, “progressives”, even if not repulsed by assistance to the working man, might also think twice. For them, my favorite example is another bill Silver ostensibly favors personally, which, though not supported by his conference, would probably pass if only it were allowed to come to the floor; yet Silver shamefully stands in the way of Democracy once again, claiming his hands are tied.

Using the logic deployed by places like “The Daily Gotham” and “The Albany Project”  Silver must let this bill come to a vote, so it can pass!


There is the suspicion that many in the netroots don’t really care that much about congestion pricing, but are looking for any weapon to hand to use against Silver. Both "Gotham" and "Project" have compared Silver’s credentials as a progressive unfavorably to those of the Governor, despite the fact that it is Silver who champions the millionaire’s tax and Paterson who opposes it (I exempt the Working Families Party from this particular anathema). Ironically, the “progressive’s” position in favor of congestion pricing should not dictate opposition to Silver (although many other good reasons might) since Silver seems not to have opposed the once-current plan, making Silver MORE of a supporter of congestion pricing than "Gotham’s" demi-god, Congressional candidate Steve Harrison, who supports congestion pricing by opposing the once-current plan, in the same manner he once opposed Vito Fossella by sending him a check.

Of course, the “Good Government” types and the “progressives” are coming from different places. Saturday, the Times ran an editorial essentially advocating the unseating of every Albany incumbent regardless of party. This is certainly no worse than their 2006 editorial where the Times pretty much advocated a vote for the Republican in every Assembly District (specifically sparing only Pete Grannis) and a Democrat in every Senate district . Of course, being the Times, they then ran a separate editorial in favor of Nick Spano, the only Senate Republican actually seen as being beatable.
This time, I get their point, but in the end it's still a shorthand substitute for real thought.

Maybe the Times should bring home their correspondent  from Nepal (you can find Moaists everywhere these days, with the possible exception of China) and instead deploy their resources to hire someone who understands what goes on in Albany. 

If they do, they'll doubtless uncover countless good reasons to justify their crusade against Shelly Silver.

And why not, after all…

"Nothing's too harsh for the Man Who Shot Congestion Pricing."