There are two kinds of state budget bills: Appropriations bills, or the money that the budget allocates; and Article VII bills, the legislation necessary to implement the appropriations. 

Article VII bills include policy and may be changed by lawmakers; appropriations bills distribute the money and may only be changed in limited ways.

This session, there's been a lot of dissatisfaction from lawmakers about Gov. Kathy Hochul’s decision to include a variety of policy in the state budget.  

State Sen. James Skoufis’ comments earlier this month on the floor of the state Senate represent how some lawmakers feel about the issue:

"This budget process should serve as a clarion call regardless of what side of the aisle you're on, regardless of what house or chamber you are in this Legislature," he said. "That we need to restore checks and balances. And yes, as it relates to the budget, that predominantly means addressing the constitutional issues we're up against. We are long past time." 

What lawmakers like Skoufis don’t frequently mention — or mention at all — is that they already have the power to address policy in the budget. They can delete it.   

“What the constitution makes clear and what the courts have affirmed is that the Legislature can’t change the wording [of appropriations bills],” explained E.J. McMahon, an adjunct fellow at the Manhattan Institute for Policy Research. “The Legislature has three choices. They can delete a sum entirely. They can reduce the sum. Or they can increase the sum in the form of a separate line the governor has to approve.”

That differs from how the Legislature may deal with Article VII bills which are statutes, and which lawmakers may take or leave at will. 

Here’s an easy-to-explain example from this year’s budget: 

The bell-to-bell cell phone ban is an Article VII bill (A.3006/S.3006). The Legislature could have simply deleted the Article VII cell phone ban language if it chose to do so.  

The $13.5 million appropriation to implement the cell phone ban is in an appropriations bill known as aid to localities (A.3003/S.3003). The appropriation contains no details on how that money is to be used, only that is it be “…allocated pursuant to a plan approved by the director of the budget.” Lawmakers may not change that wording. 

So why aren’t lawmakers willing to flex their muscles in the budget process? A few reasons. 

First, according to McMahon, the budget gives lawmakers cover on issues that may be unpopular to their constituencies.

“They don’t like to have issues exposed in isolation and debated at length,” McMahon said, referencing this year’s debate over substantial equivalency, an issue that would likely not have passed if it was a stand-alone bill. 

Another reason lawmakers hesitate to take on the governor is that they typically want to add money to the governor’s budget proposal for their own priorities. If the governor is unhappy with lawmakers for changing her Article VII language, she might not be as amenable to adding money to education aid, for example.

“Budget negotiations are the Legislature’s attempt to get the governor to agree to let them add things without threatening a veto,” McMahon told Capital Tonight. “Pure and simple.”

Former Gov. Andrew Cuomo was the first governor to regularly include policy in the state budget; Gov. Hochul has recently doubled down on that strategy.