Tuesday, January 26, 2010

A Teaching Moment: The Pitfalls of Passing Legislation Without Public Input

Mistakes in the Ethics Bill?**

We've said it before many times: drafting legislation behind closed doors without public hearings is a problem, not only because it's undemocratic, but because it leads to poorly drafted provisions, mistakes, and unintended consequences.

We assumed that the ethics bill printed and passed last week by the legislature in a matter of days, complex as it is (at over 50 pages it is a complete overhaul of many of the State's ethics laws), might have some mistakes. Mistakes that could have been corrected if there was a full public airing of the bill, with hearings specifically devoted to the bill's language.

Unfortunately, after reviewing the bill over the past few days, we are afraid our fears may have been confirmed. Here's one apparent drafting error:

Much has been made of the creation of a new Commission on Lobbying Ethics and Compliance, which proponents pointed out has been vested with certain investigatory powers. In fact, other commissions established under this bill are required to refer potential lobbying violations they discover to the Commission on Lobbying Ethics and Compliance. One might think (and indeed, one has to assume that legislators who voted for this bill thought) that the Commission on Lobbying Ethics and Compliance would then have the power to investigate such suspected violations.

Indeed, it would be reasonable to assume, based on everything that has been said about the bill, that if other commissions, legislators, lobbyists or whistleblowers came forth with credible evidence that persons violated the state's lobbying laws, the Commission on Lobbying Ethics and Compliance could use its investigatory powers to find out if a violation actually occured.

But this assumption appears to be wrong. As the law was drafted, the investigatory powers of the Commission appear to be extremely narrow. The only section we can find that details the investigatory powers of the Commission says the following:

Upon completion of a random audit conducted in accordance with the provisions of . . . this subdivision . . .the commission shall determine whether there is reasonable cause to believe that any such statement or report is inaccurate or incomplete. Upon a determination that such reasonable cause exists, the commission may require the production of further books, records or memoranda, subpoena witnesses, compel their attendance and testimony and administer oaths or affirmations, to the extent the commission determines such actions are necessary to obtain information relevant and material to investigating such inaccuracies or omissions;

In other words, it appears the Commission may only have the power to exercise its investigatory authority if it happens to uncover something in a random audit. Under these limited circumstances, the Commission is entitled to investigate such inaccuracies or omissions.

There does not seem to be any explicit authority for the Commission to investigate any outside referrals of suspected lobbying violations (even if they come from other commissions created in this bill). Given the fact that the Courts in New York have generally construed the investigatory powers of commissions very narrowly, it is reasonable to expect they might not permit the Commission to use its investigatory powers based on a referral, or based on anything other than potential problems directly revealed as a result of the random audit.

As the legislation requires other commissions to refer potential lobbying violations to the Commission on Lobbying Ethics and Compliance, the failure to explicitly give the Commission the power to investigate such referrals was probably an oversight. Our concern -- always when bills are negotiated and drafted behind closed doors, without any hearings -- is that it may not be the only one.

We realize it's anathema in Albany, but if the Governor vetoes this bill, before the legislature decides to take further action (whether to override or amend the legislation and resubmit it for the Governor's consideration), perhaps they can have a hearing that subjects its provisions to fuller outside scrutiny?

** We left messages with Senate Democrats yesterday afternoon, asking them about this concern, to see if we perhaps have misread the legislation. So far, we have not received an answer.

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