Our history vividly illustrates that one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general.
IN THE 1980S, as today, the Williamsburg section of Brooklyn was a veritable melting pot, with enclaves of Italians, Dominicans, Puerto Ricans—and tens of thousands of Hasidic Jews of varying, and sometimes competing, sects. It remained a center of Satmar activity, and the sect’s leaders exerted enormous influence there. But Joseph Lentol, the area’s popular assembly representative, was a force himself; as Brooklyn’s principled warrior for often-lost causes, he was their man in Albany.
By the end of the decade, Joe Lentol’s district, which he had served faithfully since the early 1970s, was suffering. Decades of infrastructural isolation and dwindling manufacturing jobs had dealt a terrible blow: in 1961 the Williamsburg section alone had ninety-three thousand manufacturing jobs; by 1989 fewer than fifteen thousand remained. The economic collapse merged with a social collapse as AIDS and crack cocaine devastated the community. Joe did his part, bringing the bacon back from Albany, protecting what businesses he could, dealing with the specific local problems that occasionally arose, and, most of all, maintaining his position among the Brooklyn Democrats, which was so important to delivering to his constituents enough of a share of the ever-dwindling state coffers.
Lentol’s ability to deliver was tied directly to his local connections. Being an assemblyman for Brooklyn meant being a Democrat, and being a Democratic politician in Brooklyn meant Lentol was part of the power structure. The Democrats might fight among themselves, but at the end of the day it was a Democrat, and only a Democrat, who prevailed. Occasionally, albeit quite rarely, a “reform” Democrat from outside the mainstream club would actually win an election, usually after the incumbent got indicted for something. But in general, the machine churned out, and kept in office, its own. And Lentol was one of its own.
One day in the summer of 1989, Joe arrived late at his office on the ground floor of a three-story tenement on Lorimar Street, across from the Catholic Veterans Society building and about thirty yards from the hulking swoop of the Brooklyn-Queens Expressway, the highway that in 1957 had cut his neighborhood in half. The office walls were a testament to the representation Joe had provided over the years. There were pictures of Joe with various governors and other political heavyweights, Joe with orphans, Joe with teachers, Joe with nuns, Joe with Hasidic Jews … Joe took the coffee his secretary had prepared for him and told her that he expected some special visitors and was unavailable to talk to anyone else. He walked into his inner office, where he was soon joined by some men in black hats, men who, from what the assemblyman had heard, had been extremely busy in Albany and New York City throughout that hot and rainy August.
About a month earlier, Anthony Genovese, an assemblyman from Canarsie, Brooklyn, and leader of the most powerful Democratic club in the county, was driving through some foggy weather on his way back to Albany. The car raced easily up I-87 past the tattered remnants of East Coast agriculture and industry—half-suburbanized onion farms and poisoned river towns, which remained as yet untouched by the gentrification that would shortly ignite a frenzy of renovations throughout the Hudson Valley.
As his car passed through the northern reaches of Orange County, not far from the village of Kiryas Joel, Genovese thought long and deep about his curious meeting with Hasidic constituents the day before. At that meeting was a man who had come with an intriguing request, and Genovese instantly saw how the political angles fit together, and what they potentially spelled for his career.
Genovese was one of the most powerful politicians in New York, and 1989 was a big election year for him. He was one of Brooklyn political boss Meade Esposito’s* “Green Berets,” charged with enforcing the Brooklyn machine’s will and using its power of persuasion on everyone from school principals to presidential candidates, getting them to toe the line and pay appropriate homage—and frequently kickbacks—to the local Democrats. But Esposito, who reigned over Brooklyn politics for a quarter century, was tainted. A year earlier, Esposito had been convicted in an influence-peddling scandal, and Genovese and the other generals of the Brooklyn Democratic army were vying for control of the clubhouse. They well knew the cost of loyalty: patronage.
For much of the twentieth century, New York was under the control of a series of powerful governors. Al Smith, Franklin Roosevelt, and Tom Dewey all won their national party’s nomination for president. Averell Harriman ran in several presidential primaries, narrowly losing to Adlai Stevenson twice. Nelson Rockefeller, who was and still is arguably the most powerful governor in New York history, became vice president in the Ford administration.
Richard Nixon once said that Rockefeller was among a very small handful of people in American politics—including, of course, himself—who really understood the use of power. And like no governor before or since, Rockefeller treated the New York State Legislature like a wholly owned subsidiary. He got what he wanted, and he bought legislative support by sending pork to his friends. And when a politician is as unabashedly ambitious as Nelson Rockefeller, everyone is his friend. Unlike other governors, his ability to deliver was not constrained by the state treasury. He could and would reach into the family fortune when necessary.
But if “Rocky” was the most prominent of New York’s buy-the-legislature governors, he was also the last. A period of fiscal austerity and near bankruptcy began in the 1970s, just as Rockefeller was leaving office, and since that time there has never been enough money for a governor to buy the rest of the government with pork and patronage. Failing cities fought for the remaining scraps of state funding as the big corporations that had defined New York business for a century—and had paid for a large portion of the politicians’ largesse—left the state. Huge employers up and went. Governors, even Rockefeller, didn’t have the money to buy off, or scare off, legislators, and the legislature began to flex its muscle.
Simultaneously, the character of the legislature was changing. Once a part-time job for farmers and others who would devote a few months a year to the people’s business before heading home, the legislature had essentially become a full-time occupation for lawyers and others who dabbled in their profession while spending more and more time, and more and more capital, on politics.
Party leaders in the legislature, who controlled fundraising and the distribution of party funds to local election campaigns, used that power to build lockstep coalitions. Anyone who ventured out of line would not only lose party campaign funds but also see his or her district cut off from government projects. The Democrats were in control of the New York State Assembly, the lower house of New York’s bicameral legislature, leveraging the plurality of seats from Brooklyn into control of New York City, and leveraging control of New York City into control of the state assembly. The Democratic majority in the assembly was often so numerically superior that it could, whenever the Speaker wanted, override a gubernatorial veto. So the Speaker had enormous power, sometimes more than the governor himself.
Meanwhile, the Republicans solidified control of the New York State Senate with a coalition of upstate and Long Island conservatives. That left one house of the legislature in control of entrenched Democrats and the other in control of entrenched Republicans. The status quo became all-important in a devil-you-know way, and the two houses traded gerrymandering favors to ensure the incumbents in both houses and both parties would retain their seats in perpetuity. Each party in each house carefully avoided the chaos of democracy by selecting leaders who could control their members through lucrative committee assignments and the distribution of pork to their district. They had learned something from Nelson Rockefeller.
In short, the Speaker of the Assembly became the most powerful Democrat in a Democratic state. But that power depended on the support of the rank and file assembly members. For twenty-five years, the Brooklyn Democratic leader had been the power behind the throne, the one person who could herd the cats of the party conference and ensure their support of the Speaker. But there were changes playing out in the Brooklyn leadership, creating a void that Tony Genovese planned to fill.
And so in 1989 Genovese was driving to Albany and pondering the peculiar request—or demand, really—of the man with the black hat, the long beard, and a presence that suggested he was used to getting his way. On the surface, the Hasidic man had no leverage to demand anything. The people he represented were few in number. They had no money to speak of, no connection to the Democratic Party, and they lived a hundred miles from Tony’s Brooklyn district. But the Satmar understood power politics in a way that would have delighted Rockefeller, and they voted in a bloc. And in Brooklyn, that bloc could deliver around fifty thousand votes in a primary and virtually control an election.
Tony had recently visited several Hasidic communities in Brooklyn, hoping to secure their vote for his candidate for New York City comptroller, Frank J. Macchiarola, the former New York City Schools chancellor. Genovese had a stake in the election because the comptroller has the power to audit every public official and every dollar spent in the city, and having a “team player” in that position—someone who owed him something—would be useful as he solidified his power. The Satmar Hasidim in Brooklyn agreed to support Macchiarola, on one condition: that Genovese help pass Assembly Bill 183. Though Genovese knew nothing about the bill, he promised to support it wholeheartedly and do what he could to get it through the legislature.
Genovese arrived in Albany and headed directly to a meeting with George Pataki, the young, ambitious, and popular Republican assemblyman from Peekskill whose district included parts of Orange County. Pataki, it seemed, was the man behind the request that had put all of New York’s bosses into an uncustomary position. Under normal circumstances, Genovese would barely acknowledge the existence of a junior Republican lawmaker in a chamber controlled by senior Democratic lawmakers. But Pataki’s office in the state capitol was close to Genovese’s, and they had become friends.
A second-generation Hungarian American, George Elmer Pataki is an American success story. Pataki’s father, Louis Pataki, was a mailman in Peekskill and, of course, wanted his children to benefit as much as possible from the opportunities in America. When George’s older brother was admitted to Yale, it seemed as if the father’s dream had come true, except the acceptance came with no money. Tuition at Yale, even in the days before the outrageous inflation of recent decades, was far too steep for a mailman. Distraught, Louis Pataki visited the local school principal, who told him, “Whatever it takes, you send your kid to Yale.”
So, George Pataki remembers, “what my father did was leave work at the post office and went up to Yale in his mailman’s uniform and sat outside the admissions office. The receptionist asked if he had an appointment, to which, of course, the answer was no. ‘Well, why are you here?’ And my father said, ‘I want to talk to the admissions officer.’
“He waited all day until they finally let him go in and talk to the admissions officer. He showed the officer the acceptance letter and said, ‘I thought people at Yale are supposed to be smart. Well, you accepted my son to Yale, which means, I assume, you want him to go here. You know I’m a mailman and what I earn and you didn’t give him a scholarship. Now, how can you accept somebody that he can’t go here? You’re supposed to be smart.’ And the guy was just blown away by my father’s working-class logic and called the Westchester Alumni Association, because Peekskill is in Westchester, and said, ‘You gotta raise the money for this Pataki kid.’ And they wrote the check to Yale so that my brother could go.”
Until his brother found his way into the Ivy League, George had been planning on going to Notre Dame. But George admired his brother and was determined to follow his footsteps. After graduating from Yale, he entered Columbia Law School. The combination of his middle-class upbringing and elite education left Pataki with a working-class bonhomie tempered by Ivy League civility.
Pataki had parlayed his charm, cleverness, and intelligence into a political career. He became mayor of Peekskill but was looking beyond the borders of the small city. He got himself elected to the New York State Assembly, but as a Republican in a regime controlled by Democrats, he was powerless; Republicans in the assembly are lucky to even discover what the legislature’s agenda is, much less have the opportunity to advance any bills of their own. Pataki had no chips, but he did have an ace in the hole—and that ace was a little village in his assembly district: Kiryas Joel.
Pataki knew the Satmar voted as a bloc, and that the little enclave in his district was an entrée into the much larger enclave in Brooklyn. If he could influence the Brooklyn Satmar, he could influence the state’s Democratic stronghold, and begin making a mark. The Satmar had strategically positioned themselves as the swing vote in Republican Orange County and a major force in Democratic Brooklyn. They had no loyalty to either political organization or to any political philosophy.* Their sole, unapologetic calculus was and is who could get them what they wanted.
Pataki’s chance came in the late summer of 1989.
The Satmar of Kiryas Joel needed help. If Pataki could deliver, and the Satmar viewed him as a friend, he could establish a career-making alliance. The implications of a young, obscure Republican lawmaker from the hinterlands having the power to influence politics in the Democratic stronghold were profound, and immediately clear, for the ambitious politician.
The Satmar grasped Pataki’s idea and wanted an amendment to the state education laws that would allow Kiryas Joel to secede from the Monroe-Woodbury school district and create its own independent district, complete with the powers to tax and to place children in educational programs at government expense. Pataki was willing to support them, but as a minority lawmaker with no power and little ability to get legislation introduced, he needed a Democratic sponsor to carry his bill. He went to see Assemblyman Joe Lentol.
Lentol, with his huge Satmar constituency and every political incentive to ingratiate himself with the group, agreed to be the Democratic face for Pataki’s bill, to sponsor the legislation. Thus was the Republican assemblyman from an upstate district able to introduce a bill in the city-dominated, Democratic-controlled New York State Assembly.
Passing it, however, would be another matter; even Lentol couldn’t get it to the floor of the assembly for a vote without the permission of Mel Miller, a Brooklyn lawyer who succeeded the legendary Stanley Fink* as Speaker of the Assembly and, as such, was the most powerful person in the chamber. Nothing got to the floor for a debate without his approval, and when it did get to the floor there was no sense in debate, because his members would vote as told and the Republicans lacked the votes to do anything at all.
Miller exploited his power,† as he learned from Fink, by employing everything from arm-twisting to the invocation of curious procedural rights with which the members of the assembly had cloaked their leader. For instance, no bill can be voted on until it has been assigned a number. And since only the Speaker can assign a number, nothing gets voted on without his approval.
The Speaker of the Assembly has extraordinary power, but only as long as he keeps the majority of members happy. Maintaining the leadership position requires the Speaker to play ball with the most influential members of his caucus—people like Tony Genovese—because when the party conference gets an incentive, it can reject the Speaker and his agenda. In a sense, the Speaker functions as a funnel and filter, not unlike the committee system functions in Washington.
“The beauty of the leadership system,” Miller explains, “is you can reconcile your conference, so it doesn’t balkanize into warlord committees where a chair in one committee can control how you spend all your money because he controls the committee and there’s nothing to rein him in. In a leadership system, if the head of a committee doesn’t necessarily represent the views of all the Democratic members in this state, you don’t have to leave the decision to a chairman. Instead, you’re going to have a conference and let the chair advocate for his position, but at the end of the day, it’s the conference and the Speaker that will make the decision.”
Miller did not approve of the Pataki-Lentol bill and, normally, that would be the end of it. But this was not a normal situation. Miller knew the Satmar community was under the control of religious authorities. He knew that giving them a school district to run would violate the constitutional principle of separation of church and state. All of his attorneys told him so, and as a lawyer, he had no trouble grasping what was legally and constitutionally obvious. He felt strongly about the issue and was quite vocal.
But Pataki’s brainstorm and his collaboration with Tony Genovese had seemingly yielded a have-your-cake-and-eat-it-too political bonanza. Pataki persuaded Genovese, and Genovese persuaded Miller, that there was next to no chance Governor Cuomo, the constitutional scholar, would sign the bill, and even if he did, the courts would provide cover by shooting it down. So they could collect all the political benefit of ushering the measure through the legislature and win the undying gratitude of the Satmar with a bill that had no chance of becoming law. Perfect!
“Look, I was sure it was not constitutional—facially, applied, whatever, it was not constitutional, but we looked at it again and I probably thought that we could get points for passing something, even though we should have been resolving it administratively,” Miller recalls. “As sure as I’m sitting here, I thought it was going to be vetoed, and if not vetoed then knocked out by the courts. Sometimes you make these political calculations—it’s just politics.”
The bill was drafted hastily and with no input from the state education commissioner. Orange County assemblywoman Mary McPhillips, who went on to become a major political power in in the county, opposed the bill. It is extremely rare in Albany for a bill that has mainly local impact to be passed over the objections of a local assembly member. It is almost unheard-of that a bill would pass by an otherwise unanimous vote, with the sole dissent coming from the local legislator. There was almost no public discussion of the proposal, neither in Albany nor in the Orange County area. The bill passed 149–1 in the assembly and was buried in a large package of bills before the state senate.
In the waning hours of the last day of the legislative session, the senate approved the Pataki-Lentol bill with no fanfare, no publicity. The vast majority of state legislators had absolutely no idea what they were voting on.
Indeed, those of us who were closely following the bill did not know it was on the (largely hidden) agenda for a vote. I was awakened at 5 AM by staff who called to tell me it had been passed into law.
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* Flast v. Cohen, 392 US 83 (1968), was an important decision establishing that taxpayers have a right to bring a federal court action challenging an alleged violation of the Establishment Clause. The case arose because Congress had appropriated money to assist private and public schools, including parochial schools. In a concurrence, Justice Potter Stewart added, “Every taxpayer can claim a personal constitutional right not to be taxed for the support of a religious institution.”
* Amadeo Henry Esposito was a onetime bail bondsman who wrested control of the Brooklyn Democratic club, delivered votes to Governor Nelson Rockefeller, advised Bobby Kennedy, and took full advantage of the favors he earned. He was convicted of graft in 1988 and died in 1993. See his New York Times obituary, September 14, 1993.
* On the Kiryas Joel official website (www.kjvoice.com/faq.asp), it is stated, “The citizens of Kiryas Joel take their participation in the election process very seriously. As a community, they feel an obligation to show their appreciation for individuals who support the community or stand up for the issues and ideals shared by the residents. At times the community has supported Democrats and at other times Republicans, but have generally spoken with one voice to have the greatest impact. The community views voting as a privilege in this country and realizes the importance of electing officials who share their vision for family and community. The so-called ‘bloc vote’ that is manifested on Election Day in KJ is no different than the endorsement made by the teachers union or other labor organizations throughout the Country.”
* Fink was the first modern Speaker of the post-Rockefeller era and defined the job for his successors, turning his maverick Democrats into a cohesive and formidable bloc.
† Miller was convicted of federal fraud charges (later overturned) in 1991. His successor, Saul Weprin, was succeeded by Sheldon Silver, who was convicted November 30, 2015, on federal honest services fraud, extortion, and money laundering charges. According to the Brennan Center for Justice at New York University School of Law, “The New York State legislature is nationally notorious for its dysfunction and subservience to special interests, who wield their power through campaign donations” (www.brennancenter.org/issues/new-york-reform).