Governor Hochul’s Lawless Vetocracy over Congestion Pricing: Why Undermining the Independence of Public Authorities Destroys Political Accountability

David Siffert and I have just filed an amicus brief (available here) on behalf of four state legislators in the litigation over Governor Hochul’s purported “pausing” of congestion pricing. I have already posted an item explaining why I believe that Governor Hochul’s assertion of power is lawless. In brief, the plain text of New York’s Traffic Mobility Act (“TMA”) gives the Metropolitan Transportation Authority’s Board power to design, implement, and operate the statutorily required congestion pricing system, to the exclusion of the governor. The statutory command could not be clearer: Vehicle & Traffic Law section 1704(b) specifies that the Board “shall…plan, design, install, construct, and maintain a central business district toll collection system and implement and operate the same to collect the central business district toll.”(This textual argument is cogently laid out by the brief filed by Emery Celli on behalf of City Club of New York and two other petitioners).

Our amicus brief supplements this textual argument with an argument about legislators’ intent. The simple point of our brief is that the legislators (four of whom are our clients) understood the MTA Board to be an independent public authority not subject to being bossed by the Governor. On pages 4-6 of our brief, we summarize and cite to legislators’ statements that they understood the MTA, not the governor, to be in charge. (Kudos to our outstanding RAs for listening to hours of YouTube videos of hearings to find this stuff!) Beyond statements from legislators, we quoted multiple statements by Governor Andrew Cuomo, the person who proposed congestion pricing in 2017, declaring that he was not in charge of the MTA and could not control its actions. (For a good example, see this 2018 CBS story).

We would be delighted if Justice Engoron concluded that the statutory text so plainly excludes gubernatorial power over congestion pricing that any reference to this legislative history is unnecessary. That legislative history, however, usefully reveals how judicially inferring unwritten gubernatorial powers to veto or “pause” the MTA Board erodes political accountability by complicating responsibility for the tolling program. Mayors and governors like to invoke the MTA’s “independent” status to avoid taking blame for poor subway service. That’s already confusing to voters. Adding an unwritten, essentially hidden gubernatorial “pause” power to the mix makes the entire system utterly unintelligible: It creates the ultimate covert vetocracy (to use Fukuyama’s term) in which governors have the power to say “no” but no responsibility to provide good subway service.

1. The 1920s Progressives’ Compromised Ideal of an Independent Public Authority Insulated From Partisan Politics

As our brief notes, the MTA, like other public authorities in New York, was self-consciously designed to be independent from control by elected officials. Julius Henry Cohen, the Progressive Era lawyer who played a major role in designing public authorities, pushed for institutions that were a hybrid between governmental agencies and private corporations. His ideal authority was a sort of non-profit organization free from both partisan pressure as well as private profiteering.

That ideal, of course, was never really achieved, either because politicians insisted on retaining some sort of oversight role or because the unelected officials in charge of the authorities became tyrants eager to accrue power rather than benefit the public.

The 1921 legislation that created the Port Authority is a good example of politicians’ vetoes’ being baked into law. Initially drafted by Cohen to make the Authority’s board independent from gubernatorial power, the bill was amended to authorize the New York and New Jersey legislatures to give their respective governors a veto over the decisions of each governors’ appointees to the Port Authority’s board. Remarkably, the legislatures did not confer any such veto on their governors until 1927, when New York’s Gov. Al Smith got in a tussle with New Jersey’s Gov. Harry Moore over whether the Port Authority’s engineer should be allowed to ban wire cable as a suspension mechanism, thereby excluding N.J. firm from bidding on the George Washington bridge. Since 1927, therefore, the Port Authority has been subject to dual vetoes from those two governors, provoking complaints from an expert panel that the Authority has “devolve[d] into a patronage mill and a piggy bank for pet projects.” (Remember Chris Christie’s “Bridgegate” scandal? That was a product of that 1927 legislation)

Robert Moses’ Triborough Bridge & Tunnel Authority is, of course, the most famous example of the opposite problem —- insulation from electoral checks so effective that it creates a tyrannical authority that can bulldoze communities at the whim of the Authority’s executive. Moses is hardly the only authority boss who has aroused fears of unaccountable power: As a 2019 state senate investigative report noted, public authorities have persistently provoked worries about corruption, abuse of power, and mismanagement.

In short, there is no magical formula by which to manage revenue-producing infrastructure like bridges, tunnels, subways, and ports. Cohen was naive to think that insulation from electoral oversight would magically create efficient, honest public service. But electoral oversight is hardly a panacea, because voters unsurprisingly do not pay close attention to the boring minutiae of infrastructure finance, leading to opportunities for patronage and outright graft. The legislature has repeatedly tried to strike a balance, using a variety of checks contained in multiple statutes, including from reporting requirements, fiduciary duties, and elected officials’ vetoes, to achieve good service delivery.

Unlike the “pausing power” asserted by Governor Hochul, however, these checks on public authorities’ independence are written into statutory text. The legislature, in short, knows how to give elected officials supervisory power over public authorities, and they did not do so in the TMA.

2. The Legislature’s Complex Insulation of the NYC Subway System From Electoral Controls

When it comes to the NYC subway system, indeed, the New York legislature has historically opted for a governance model tilted towards insulation from control by elected officials. Between 1940 and 1953, the subway system was effectively under the NYC mayor’s control after the City acquired two private transit companies’ assets. Those mayors (La Guardia, O'Dwyer, and Impellitteri, however, all refused either to raise ticket prices above the sacred 5-cent fare or admit that subways could not be self-financed through fares. The resulting persistent deficits led Governor Dewey to declare that the system had become “an abused and shabby political football” and to push through a statute inn 1953 placing the subway system under a new NYC Transit Authority. The NYCTA was insulated from mayoral and gubernatorial control insofar as its board was appointed by both the governor and mayor but could not be fired by either until the expiration of a fixed term of years.

The MTA took over the Triborough Bridge & Tunnel Authority, the NYCTA, and a bunch of failing railroads, but its Board maintained this insulated status: Its members, are appointed by the governor, NYC’s mayor, and seven different county executives and serve six-year terms from which they cannot be fired except on proof of misbehavior or incompetence. There is no doubt that the state legislature really intended this unwieldy body to be independent from elected officials: A 2009 statute unequivocally declares that, although such authorities “may take into consideration the views and policies of any elected official or body, or other person,” they must “ultimately apply independent judgment in the best interest of the authority, its mission and the public.” Everything about the MTA’s history, in sum, indicates that the legislature has never wanted to give elected officials any free-floating veto over the MTA’s decisions.

This complex insulation from any single elected boss has some disadvantages. Political scientists have long observed that politicians use complex delegation structures to avoid blame from voters for bad outcomes. The MTA Board’s mix of appointees makes it notoriously difficult for voters to know whom to blame for bad subway service — a difficulty that politicians both decry and exploit. As Andrew Cuomo complained in 2018, "Who's in charge? Who knows! Maybe the county executive, maybe the president, maybe the governor, maybe the mayor." Both Mario and Andrew Cuomo unsuccessfully pushed for legislation giving them a majority of the Board. Others complain that, despite appearances, the MTA Board really was Cuomo’s sock puppet, given his power to influence funding and his control over six out of 14 votes. The MTA’s absence of any clear boss, however, was also a feature that elected officials could exploit to escape blame for the subway’s poor performance, as when Cuomo and Blasio feuded over who was to blame for bad subway service.

3. Judicially Conferring A Gubernatorial “Pause Power” Further Muddies Political Accountability With a Vetocracy

Given how confusing control over NYC’s transit system already is, how could judicial approval of Governor Hochul’s power play make things worse?

The problem is that the power claimed by Hochul is not a power to manage the subway system;It is just a power to throw a wrench on the tracks when the MTA Board tries to manage that system. There is a decent case to be made that the subways ought to be managed by a single, highly visible, elected executive like a mayor or governor. Governor Hochul, however, does not (and, given the TMA’s text, cannot) claim to be some sort of latter-day Robert Moses. She does not purport to exercise any broad managerial power to design and implement solutions for jammed-up bridges and delayed trains. Instead, she claims only a power to say “no” when the MTA tries to solve these problems. In a system already paralyzed by gridlock, she is asking Justice Engoron to give her yet one more roadblock to jam up the MTA’s decision-making process.

The vetocratic character of Hochul’s “pause” is epitomized by her offer to introduce a new congestion pricing statute to the New York legislature by year’s end. One can only admire the brazen chutzpah of Hochul’s proposal to enact a new statute to replace the old one that she refuses to obey. The legislature already spent two years debating and eventually enacting a congestion-pricing statute initially proposed by Governor Cuomo — a statute that Hochul is now using extra-legal powers to stymie. Enacting that statute was a Herculean effort, requiring legislators to cast controversial votes over which different categories of commuters and city residents bitterly disagreed. Precisely because the question of who should pay and how much is so divisive, the legislature turned the details over to the MTA Board and its advisory body, the Traffic Mobility Review Board chaired by Carl Weisbrod, a veteran NYC policy-maker and public servant. Weisbrod’s TMRB made a recommendation to the MTA Board after hundreds of hours of hearings. Thousands of public comments and thousands of pages of environmental assessment later, the Feds approved an Environmental Assessment.

Why would the state legislature take up Hochul’s invitation to repeat this arduous process, once more casting controversial votes for a new law that Hochul could ignore just as easily as she ignored the old one? How could the legislature write a new statute that more clearly mandated congestion fees than the TMA? Put in a “this time, we really mean it” clause?

Hochul’s purported “pausing power” is, in short, a recipe for endless vetocracy, because it overturns a delicate and complex statutory compromise(1) without putting anything else in its place while (2) practically asserting a power to derail any future legislative compromise. This is not a power to govern: It is a power to induce government paralysis.

Fortunately, Justice Engoron does not need to engage in any judicial fancy-footwork to reject such a power. He need merely read the TA’s plain text. That text flatly commands the MTA Board, not the governor, to “plan, design, install, construct, and maintain a central business district toll collection system and implement and operate the same to collect the central business district toll.” The MTA Board is far from a perfect vehicle with which to manage NYC’s transit system, but at least it is a single decision-maker visibly charged with making a particular decision. Complicating this relatively plain delegation with some unwritten, judge-made gubernatorial veto would not only be lawless but would also make responsibility for the tolling program even more unintelligible to frustrated commuters and taxpayers.