A ruling by a state Supreme Court judge in New York upholding a cap on how much lawmakers can make from outside income is leading to warnings of mass resignations and “chaos” in the state legislature. The legislators say their $142,000-a-year salaries are not enough to attract and keep competent candidates in the state house.

A state Supreme Court justice at Suffolk County, Alison Napolitano, upheld a 2022 law that put a limit of $35,000 on outside income for lawmakers. The measure was designed to limit the potential for conflict of interest and help avoid the appearance of impropriety. 

Besides limiting how much lawmakers could make on the outside, the law also increased their salary by $32,000 to $142,000, the highest for state lawmakers in any state in America.

In 2023, Republicans sued to block the law, arguing that it “deprives Plaintiffs of their property interests, namely their legislative salaries and outside income, by imposing restrictions on their businesses and outside income.” Specifically, they took issue with a provision in the law that would have prevented lawmakers from voting in the legislature if they did not comply with the limit on outside income. 

Judge Napolitano wrote in her ruling earlier this month that the idea of a limit on outside income for lawmakers is not a “novel concept,” saying, “In 1977, the legislative arm of the federal government initiated a restriction on outside income to curb the appearance of impropriety and aid in boosting public confidence and trust in government officials.”

She also noted that the restriction on outside income was introduced as a bill in the legislature and “opened up to debate.” While there was opposition to the bill from members of both parties, it passed the Senate 33-23 and the Assembly 84-47.

“Upon a review of all the documents submitted in connection with these instant motions, the Court finds that, as the legislature is vested with the inherent authority to ‘self-police’ and discipline its members, the portion of the law dealing with outside income restrictions on members of the state legislature and the civil penalties against an individual legislator for the willful violation of such restrictions is constitutional,” the justice said. 

While Ms. Napolitano found that lawmakers have the right to “self-police” themselves and upheld the law, she struck down its main enforcement mechanism — preventing members who do not comply with it from voting.

“Central to this nation’s government is the right to vote,” she wrote. “In relation to the income restriction legislation currently before this Court, the constituent plaintiffs opine that the penalty of stripping a representative member’s voting privilege indefinitely upon a finding of violating the income restriction unconstitutionally deprives constituent voters in New York of their right to be represented in state government.”

She criticized the part of the law that declined to limit how long a member could have their voting rights suspended and noted that it does not require lawmaker’s constituents to be notified of the suspension.

“Conceivably, voting constituents could be left without fair representation for the entirety of the two-year term of the member in violation,” she wrote. “The Court questions how a voting constituent would even be informed that they are unrepresented in the event of a member’s suspension based on a violation of the outside income restriction.”

Republicans filed an appeal and sought a stay of its enforcement.

The state Senate minority leader, Robert Ortt, said in his motion for a stay filed on March 14, “Absent a stay of enforcement…this Court’s ruling will lead to chaos in the Legislature. A mass exodus of members — disproportionately affecting the Senate and Assembly Minority Conferences — is almost assured.”

Mr. Ortt said that if the “qualifications of current members are changed ex post facto, members will be forced to resign and leave their constituents without representation.” He said there are 26 Assembly members and 12 senators that would have to either resign or “divest themselves from outside income” due to the law.

“These vacancies in office will lead to a wave of special elections that cost taxpayers millions of dollars to administer and will leave constituents without representation for months on end,” he wrote.

While the restriction on voting rights was struck down, Republicans fretted in their motions for a stay that they could have their legislative salaries suspended if they were found to have violated the law. The Assembly minority leader, Will Barclay, said in an affidavit in support of a stay that if he was found to be in violation of the law, he could face a civil penalty of up to $40,000 and could face other penalties as well. 

A former state attorney general who is representing Republicans in the case, Dennis Vacco, raised concerns that the Legislative Ethics Commission “has not provided any explanation of how or when (the law limiting outside income) will be enforced or what the process for the levying of penalties would be.”

“Stated plainly, legislators are currently left guessing whether outside income they have earned since (Jan. 1) already causes them to be vulnerable to penalties,” he said. 

An assistant attorney general for New York, Susan Connolly, submitted a filing opposition to the request for a stay as said the plaintiffs did not provide any “legal authority supporting” their request. 

Government watchdog organizations in New York have warned about conflicts of interest from lawmakers making money from entities that have business before the legislature. In July 2023, a group of left-wing organizations argued the law limiting outside income did not go far enough because it did not “prohibit outside income from entities where the legislator would have a fiduciary responsibility to a client.”

However, Republicans argued that the limit on outside income would make it harder for “citizen-legislators” to serve. Mr. Barclay said in July 2024 that the law was an “attempt by Albany Democrats to disqualify citizen-legislators in favor of full-time politicians.”