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Changing the Timing of the State of the State Address

February 26, 2015

By: Bennett Liebman
Government Lawyer in Residence

This January, Governor Andrew Cuomo, following the death of his father former Governor Mario Cuomo on January 1, decided not to deliver his annual State of the State remarks when the State legislature reconvened on Wednesday January 7. Instead, he delivered his remarks on Wednesday January 21, 2015, two weeks after the original time of the State of the State.

The question arises as to what legal constraints were in place that might have limited the Governor’s ability to change the timing of his State of the State remarks. What precedents were there on the delivery of these remarks?

The short answer is that there are basically no restraints on the State of the State remarks. In fact, there is no requirement that the Governor actually deliver an oral State of the State address.

The legal issue is governed by Article 4, Section 3 of the State Constitution which provides that the governor “shall communicate by message to the legislature at every session the condition of the state, and recommend such matters to it as he shall judge expedient.”

On its face, this provision states nothing about the timing of the communication. Thus, there is no Constitutional requirement governing the timing of the Governor’s message.  The Governor is free to deliver this message at whatever time he or she might wish.

Nor is there any requirement of a speech. All the Constitution requires is a “message.” This is not idle language. The State of the State requirement has largely been unchanged since the 1821 Constitutional Convention. At that convention delegate Peter Robert Livingston[1] wanted to make sure that only a message not a formal speech would be required. A message would not necessitate the legislature to convene in Albany. A message would not cost the State the time and the expense of the individual legislators.[2]

Based on this non-requirement of a speech, New York governors for a century simply delivered written messages to the legislature. The speech element was not added until Governor Alfred Smith in 1923.

This basically tracked what was happening on the federal level where no oral State of the Union message was delivered between the time of Thomas Jefferson’s presidency until Woodrow Wilson in 1913.[3]

Smith’s remarks 1923 remarks were the first time that a “Governor of this State has delivered his message in person.”[4] In prior years, the message would be given by the Governor’s secretary to the clerks of the individual houses who would read the message to the members.[5] Smith claimed, “It will at least mean that the legislators will remain in their seats to hear it, as least as far as I am concerned, for I shall not skim through it as I have heard some clerks of the Assembly do.”[6] The New York Times added that the “Governor-elect is well aware that little attention is paid to a message from the Governor, no matter how important the  topics dealt with when the message is read in the usual lackadaisical somnolent fashion by the Clerk of the Senate or Assembly.”[7]

Smith was not joking about his non-skimming of the message. The New York Times claimed that his 1923 speech lasted one and a half hours.[8] In subsequent years, Smith spoke for longer period. His 1924 speech was two hours.[9] The 1925 speech took three hours.[10]The 1926 speech was 2:10.[11]

In his last two years as governor, Smith waived off the actual State of the State speech. In 1927, upon doctor’s orders, he chose not to deliver a State of the State speech.[12] The 1928 message, with Smith a candidate for the presidency, was the longest message ever,[13]  encompassing 35,000 words,[14] and Smith chose not to deliver it. Smith joked, “I wanted to go to New York Friday so I decided I would have to forego the reading of the message Wednesday.”[15]

All governors since Smith have given their State of the State messages in person. The speeches have been broadcast, and governor have learned, unlike Governor Smith, to keep their remarks to a more manageable time period.[16]

[1] Livingston subsequently served both as the Speaker of State Assembly and the  President Pro Tem of the Senate

[2] Robert Allan Carter, New York State Constitution: Sources of Legislative Intent (Second Edition) p. 35 (2001) See also Constitutional Convention of 1821, Reports of the Proceedings and Debates P. 173.

[3] See Frederick N. Rasmussen, “Woodrow Wilson Revived the Tradition of the Oral State of the Union Address,” Baltimore Sun, January 29, 2011. See generally http://www.presidency.ucsb.edu/sou.php

[4] “Smith to Read First Message on Wednesday,” New York Herald Tribune, December 30, 1922.

[5] Id.

[6] Id.

[7] “Smith Will Read his Annual Message, “New York Times, December 30, 1922.

[8] “Gov. Smith Proposes Radical New Laws to Bring Home Rule,” New York Times, January 4, 1923. The Baltimore Sun claimed that his speech was one hour and forty minutes. “Liberal Government Is ‘Al’ Smith’s Plea,” Baltimore Sun, January 4, 1923.

[9] “Gov. Smith Presents Tax Relief Program; Republicans to Aid,” New York Times, January 2, 1924.

[10] Reginald Wilson, “Smith Urges Cooperation; Republicans Act at Once,” New York Herald Tribune, January 8, 1925. The New York Times clocked the speech at two hours, forty-five minutes. See “Message Longest on Record,” New York Times, January 8, 1925.

[11] Reginald Wilson, “Smith Wants State to Fund Housing, Asks 25% Tax Cut,” New York Herald Tribune, January 7, 1926.

[12] “Smith Not to Read Message to Legislature; Breaks His Custom by Doctor’s Advice,” New York Times, January 4, 1927.

[13] “Gov Smith Faces G.O.P. Majority,” Associated Press, Boston Globe, January 4, 1928.

[14] Theodore C. Wallen, “Smith to Give Nation Views In Message of 35,000 Words,” New York Herald Tribune, December 29, 1927.

[15] “Smith Feared Message Would Take Up 3 Days,” New York Herald Tribune, January 4, 1928.

[16] The one exception to this shortened State of the State approach may have been Governor Cuomo’s actual 2015 State of the State address which ran for one hour thirty minutes. Arguably, the fact that this peech was combined with the budget presentation could conceivably have justified its length. See Kyle Hughes, “Cuomo Talks Gambling, Schools,” Oneida Daily Dispatch, January 22, 2015.

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