Thursday, January 28, 2010

About That Veto...

Liz Benjamin reports today that the Ethics Bill is still sitting on the Governor’s desk. If it’s still there on Monday at the end of the day Tuesday, it will automatically become law.

As my colleague Larry Norden pointed out yesterday, the governor’s veto provides the best hope of forcing the legislature to fix the significant mistakes in the bill in a timely fashion. It would be a shame – and rather odd, given Paterson’s earlier insistence that he will veto the bill – if the Governor allowed this one to slide.

The sooner the bill gets sent back to the legislature, the sooner (we hope) our lawmakers can start doing what they should have done the first time around: holding public hearings and meetings devoted to studying, improving, and correcting oversights in the legislation. Let's get to it.

Wednesday, January 27, 2010

Fixing Mistakes in the Ethics Bill

If the Governor signs the Ethics Bill, can drafting mistakes be fixed? Yes, of course, the legislature could pass amendments to the bill to fix mistakes that resulted from a lousy process. In fact, this came up during the Senate's floor debate over the bill, and we've heard from several sources that the Democrats are currently looking at drafting "technical" amendments to the bill. But claims by legislators that they will fix mistakes after passage should satisfy no one, either in this case or in the future. Here are at least five reasons why:

1. This is no way to pass what has been dubbed the most significant overhaul of the state's ethics laws in decades. We shouldn't be cleaning up such significant drafting mistakes after a bill has passed both houses, particularly when they could have easily been caught if the process was more open and deliberative to begin with;

2. It is reasonable to ask whether any of the mistakes the Legislature is now reviewing (it is our undertsanding others have been found) would have been caught after passage if the Governor hadn't threatened a veto. I can honestly say that we at the Brennan Center probably would have spent less time reviewing the bill this past week absent a veto threat (for without that threat, the promise of fixing at least some mistakes relatively quickly would have seemed slim to none);

3. Unfortunately, the legislature has a sorry history of taking months and sometimes years to fix drafting mistakes (which, surprise! are not that uncommon in Albany), particularly when the fixes are not a priority matter for leadership or a majority of its members;

4. If "fixes" are passed in the same closed manner as the original bill, how will we be sure that they fully fix the problems identified, or don't create other problems?;

5. Who knows if all of the drafting issues and other problems in this major overhaul of the State's ethic code have been identified, even now? When you pass a bill like this in a matter of days, drafting it behind closed doors, there are bound to be undiscovered mistakes and potential unintended consequences of drafting choices -- even after a handful of outside groups have had a few more days to review it.

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.

Impact of Citizens United on New York State's Campaign Finance System? Not So Much

By Kelly Williams and Ciara Torres-Spelliscy

Last week, in its 5-4 decision in Citizens United v. FEC, the United States Supreme Court ruled that laws banning independent expenditures by corporations meant to influence the outcome of political campaigns are invalid under the First Amendment. The decision has vast implications for campaign finance on the federal level and in many states, but our state’s campaign finance system is so lax to begin with that Citizen’s United appears to have no substantive effect on New York’s existing campaign finance laws. But as we have reported over the past two weeks, the Governor and the Legislature have proposed two different reform packages, each of which has components that would change existing campaign finance laws in this state. To avoid any doubt about the impact of the ruling on New York’s pending ethics and campaign finance reforms, we reviewed the proposed bills and came to the following conclusions:

First, both the Governor and the Legislature propose increased reporting of independent expenditures by corporations: reporting requirements in the case were ruled valid: “…disclosure requirements may burden the ability to speak, but they “impose no ceiling on campaign-related activities … and do not prevent anyone from speaking,”” wrote Justice Kennedy, citing earlier precedent (id at 51).

Second, the Governor proposes banning direct contributions by corporations. The Court noted that this issue was not presented in the case, leaving similar laws in place at the state and federal level unchallenged. “Citizens United has not made direct contributions to candidates, and it has not suggested that the Court should reconsider whether contribution limits should be subjected to rigorous First Amendment scrutiny.” (id at 43)

Third, the Governor proposes closing the housekeeping accounts loophole that allows unlimited contributions to political parties’ general funds. Citizens United does not directly address soft money contributions, and we have no reason to believe that Governor Paterson’s attempts to limit contributions to housekeeping accounts would come into conflict with this ruling.

Finally, after reviewing the ruling carefully, we see no reason to suspect that the Governor’s proposal for public financing would be challenged on the basis of the ruling (although technical issues with the proposal merit study; we will write more about this later), or that either proposal’s increased enforcement and disclosure requirements are undermined in any way.

Monday, January 25, 2010

Building a Better Ethics Bill

Although both houses of the legislature passed that branch’s ethics bill last week, the fate of the legislation is still unknown: the governor has threatened to veto the bill, and Senate Republicans say that their support of an override vote is not a foregone conclusion. This weekend, the New York Times editorialized that the Governor is right to reject the bill, and that he should use this opportunity to push for more sweeping reforms.

Many of the Times’ recommendations mirror our own. We agree on the need for new limits on the use of campaign contributions, broadening income disclosure requirements to include the legislature’s lawyers, establishing an independent body to oversee the legislature, and making elections fairer through public financing and redistricting reform.

The governor is unlikely to convince the legislature to agree to everything in his own ethics bill introduced as a part of the budget last week, but he is right to reject the assertion that New York can’t do better. We hope the Governor can use his veto threat to get more concessions out of the legislature and maybe even ensure a more open and transparent finish to this process, in which experts and the public are given the opportunity to weigh in on the particulars of the current bill and the reforms that New York needs.

Thursday, January 21, 2010

Ethics Reform for New York State – Let’s Keep At It

Kelly Williams

One week after it was introduced, lawmakers in Albany yesterday pushed through their ethics reform package. Even with only a single dissenting vote in the Senate and two dissenting votes in the Assembly, many of the bill’s supporters could muster only faint praise. “We have further to go,” said Senator Liz Kreuger, who voted for the bill. Some Republican lawmakers have promised that any override of a veto by the governor include consideration of their proposed improvements, which are aimed at increased bipartisanship in the state’s campaign finance enforcement infrastructure, but do not go as far as we would like to increase disclosure, limit potential conflicts of interest and establish an independent ethics commission for the legislature.

The bill contains a small but tidy list of positive measures: increased enforcement of campaign finance laws, and requirements that registered lobbyists disclose business relationships with officials and that lawmakers publicly disclose their income by categories.

But a number of very good proposals, including the Governor’s, were ignored, and deserve an open discussion and serious consideration going forward.

On a larger scale, ethics and disclosure laws have undergone revolutionary thinking in recent years and New Yorkers should insist that they have the opportunity to consider these ideas and compare them to best practices in other places. The Jack Abramoff scandals resulted in sweeping reforms at the federal level in 2007. Public financing systems in other jurisdictions, including Arizona, Connecticut and New York City, merit scrutiny. The majority of states have independent ethics oversight commissions with jurisdiction over all officials. Corporate contributions are not allowed at the federal level and in the majority of states and contribution limits in New York should be lowered. These and other improvements would create strong disincentives for corruption.

The last time the legislature addressed the issue of ethics reform was in 2007, when newly-elected Governor Eliot Spitzer, together with the leaders of the Assembly and Senate, cobbled the Public Employees Ethics Reform Act (PEERA) of 2007, the first comprehensive modification to lobbying and ethics laws in New York State in twenty years.

The 73-page bill was unveiled on January 23, 2007 and adopted by the legislature without hearing or substantive debate a few weeks later. Then, as now, the problems with the system were obvious and comprehensive reform proposals had been circulating for many months. But innovative ideas fell on the deaf ears of legislators, who left in place the bifurcated, politicized system of ethics oversight that allows the legislature to police itself. Good government groups supported the law’s ban on honoraria and gifts; praise was faint for the remainder of the package.

Faced with an ongoing series of corruption scandals, lawmakers should sponsor open public hearings across the state, with an opportunity for citizens to voice their opinions, consider the variety of reforms adopted in other states, and air suggestions for improvements.

Wednesday, January 20, 2010

A Step Forward on Debate

Notwithstanding everything said in the previous post about the process by which the ethics bill was passed, the Senate had a fairly substantive floor debate on specific provisions of the bill this afternoon (the transcript should appear here soon). We would have preferred if that debate was informed by hearings that included input from the public and experts, but we're happy to see this bit of process progress in the Senate.

Brennan Center Statement on the Passage of the Legislature's Ethics Bill

Today, the legislature passed S6457/A9544, the legislative ethics bill that seeks to institute stricter reporting requirements on lobbyists and legislators who accept payments for consulting services, make oversight of the executive branch more independent, and give the Board of Elections stronger tools to enforce campaign finance laws.

Senator Schneiderman, the bill’s primary sponsor, acknowledged today that this bill is only a first step toward the full suite of reforms that Albany needs. We hope that the legislature takes this to heart and continues to work toward reform. Specifically, the legislature needs to close the loophole that allows lawyers and legislators in other protected professions to obscure their sources of outside income from public view, establish a truly independent body to oversee the legislative branch, and work toward stricter contribution limits.

While the Brennan Center applauds the legislature’s newfound zeal in addressing Albany’s need for reform, we are disappointed by the process by which this bill was passed. The bill went from consideration by its committee of first referral to a floor vote in less than a day in the Assembly and less than 30 hours in the Senate. Any bill that purports to increase transparency in government should be subject to open consideration and public input. It is regrettable that neither chamber held hearings on this bill.

It remains to be seen whether the governor will sign the bill. Whether or not the bill is enacted into law, we hope that the legislature will continue its efforts to reform state government, its ethics and disclosure laws, and its campaign finance rules.

The public would be right to be skeptical of a bill negotiated in secret and passed so quickly that claims to bring greater disclosure, openness, and ethics to Albany. Governor Paterson has a proposal which would bring much greater, needed change to Albany. Other legislators have indicated they would like to see more done, one way or another. Next time, let's have a hearing or two that allows experts and the public to comment on bill language.

Brennan Center/ Common Cause New York Joint Statement on Ethics Bill

Common Cause/NY and the Brennan Center for Justice issued the following joint statement this afternoon:

It has been reported that the New York State Senate Democrats have been conferencing behind closed doors to consider proposed ethics legislation and that these negotiations may be leading to the bill’s ultimate demise. The need to change the ethics oversight regime in Albany has been editorialized by nearly every newspaper in the state and is well established among the electorate. Governor Paterson made it a cornerstone of his State of the State address earlier this month.

Irrespective of our groups’ position on this bill (Common Cause/NY has stated its opposition and The Brennan Center has called for more public input) we strongly believe that S6457, which is supposed to improve transparency and set high ethical standards, should not die behind closed doors. It must be brought out into the sunlight through public hearings and, ultimately, a floor vote. In this way, details would be debated and the bill itself perhaps even strengthened, before it would receive an up or down vote by every member of the legislature.

This proposal should not suffer the same fate as the congestion pricing proposal did in 2008, which was suffocated behind closed doors. New York demands better. It is time for the legislative leaders and their members to conduct public business in public view, whatever the outcome of their debate. The fate of this bill, which is supposed to shed light, should not be decided in the shadows.

Tuesday, January 19, 2010

Times' Spot-on Analysis of Ethics Bill Points to Need for Additional Discussion

Today’s New York Times editorial on the ethics bill released by legislative leaders last week offered a spot-on analysis of the legislation: it’s a small step forward over the status quo, but it falls short of the real reform that New York needs.

In particular, the Times points out the improvements the bill offers, in particular requiring lobbyists to disclose business dealings with legislators and giving "the Board of Elections new clout by empowering it to investigate and fine lawmakers who violate the few campaign laws that do exist." It also seizes upon the bills biggest shortcomings, including the loophole that exempts lawyer-legislators from disclosing their clients, the fact that legislators continue to control the body intended to monitor their compliance with ethics laws, and the bill’s failure to make substantial changes to the state’s campaign finance system, all concerns that we share.

Of the disclosure exemption for legislators, the Times writes, “A lawmaker’s first obligation is to the public, not the clients.” We have written before that the claim that lawyers are forbidden from listing their clients is largely bogus. But more to the point, New Yorkers should ask their legislators: given your obligation to serve the public, why choose to represent clients whose interests are served by secrecy? Lawyers have the ability to decide who they represent, and if accepting a potential client would cause a conflict of interest with a legislator’s public duties – including their duty to reveal their outside sources of income – why take on that business?

Despite the way that legislative leaders have framed the discussion around the bill, there is no reason that the Senate cannot have a robust debate about this and other problems with the legislation. As of Friday, the Senate website showed the bill coming before the Senate Codes committee this morning. As my colleague Larry Norden wrote yesterday, Senators who want to give this bill the public hearing it deserves should use this opportunity to petition for a hearing, as is allowed by the new Senate rules.

Monday, January 18, 2010

More reasons for a Senate Hearing on Ethics

Senator Bonacic says he would gladly sponsor Governor Paterson's ethics reform legislation (if and when it is released):

If no Senator in the Democratic Senate Majority sponsors it when it is released, I will sponsor it, because I believe these ideas deserve an honest debate.

Shouldn't we get a hearing on the relative merits of each proposal, including an in-depth analysis of bill language that is likely to have far-reaching consequences?  If even a small number of Senators are unhappy they were kept out of the process of negotiating the ethics reforms, and think they have better ideas (or have questions about specific provisions or language in the bill), why not petition for a hearing

Question of the Day

We've argued that if any bill deserves a hearing and some real public debate, it's the new ethics bill just dropped by leaders of the Senate and Assembly: after all, the bill's supporters argue that it's very purpose is to bring greater openness and disclosure to Albany.

The new Rules provide an opportunity for that hearing and debate, no matter how quickly leadership wants to move the bill. It allows just 1/3 of committee members to petition to hold hearings on specific bills (subject to the approval of a majority of the committee).

The Senate Republicans complain they were excluded from the closed-door negotiations on the bill. So here's the question of the day: will Senate Republicans demand an up or down vote for a hearing on this bill, which would give not only them, but the people of New York, a chance to publicly comment on this bill?

We'd be very interested in seeing if anyone would vote against such a hearing.

As we've mentioned before, the new Rules in the Senate won't mean much unless and until Senators start using them. And anyone can use them -- not just Democrats, or a majority of members. That was supposed to be the point of many of these changes -- they were meant to give rank and file members (and the public) a voice in the legislature. The new Ethics bill provides a great opportunity to see whether any Senators will use the new Rules to improve what has been, for far too many years, a broken process.

Friday, January 15, 2010

Reform is More than Words on a Page

We've praised the Senate for some of the rules changes it made last year and, frankly, the Senate should be praised for those new rules: while far from perfect, the rules passed last summer were an important change in Albany, and the Senate was promising that we'd see more to come (which is, of course, a recurring theme in Albany).

But we've also long said that in the end, it's the execution of the rules changes by the Senate, rather than the rules themselves, that are going to make the difference. If the new rules are just words on paper, they're just words . . . and the Senate's promises of reform worse than empty.

This morning, Senator Schneiderman, chair of the Senate’s Select Committee to investigate Senator Monserrate’s conviction, stated that the transcripts of the committee’s meetings would be posted online because “this was a significant enough matter that the public [has] a right to know.”

We agree that the public should have access to transcripts of the meetings held by this committee, but this should not be an exception to the rule. The rules passed by the Senate in June of 2009 require the Senate to make all legislative records, including “records of committees, agendas, votes, and minutes [emphasis added]” available in a searchable and sortable internet database. As of this writing, the Senate is in partial violation of this rule.**

In the resolution passed along with the new rules containing this provision, and in the report issued by the Temporary Committee on Rules and Administration Reform this spring, the Senate also promised to consider other reforms to make the committee process more robust and transparent by the end of 2009, so while we're at it, whatever happened to those promised reforms?

The Senate has a lot on its plate with the possible expulsion of Monserrate and ethics reform, but they must not be allowed to ignore their unfinished business with respect to rules. We'll keep watching and keep you informed. We want nothing more than to be able to praise the Legislature for real reforms, but we can't do it if the reforms are pretty words on paper and nothing more.

**UPDATE: Andrew Stengel, Senior Adviser for Government Reform and former Brennan Center staffer, contacted us this evening and noted that that the senate has not violated the entirety of the rule cited above (we added the modifier "partial" after his call): it does now make committee meeting agendas, voting records, and attendance available online. This is certainly a big step forward and we applaud the senate for its efforts and recognize that all changes may not yet be realized, given that the 2010 term has just begun. However, we would like to see all committees follow the lead of the Monserrate committee and comply with the full rules by posting meeting minutes - reflecting the substance of committee discussions - on the open senate website in the new year.

Concerns About New York's New Voting Machines

Study argues that new voting systems purchased in New York could lead to significantly higher rates of spoiled ballots.

As we all know, New York State and City are expected to replace our long used lever machines with new optical scan voting systems, in time for this year's statewide primary. With optical scan systems, voters fill in a bubble next to their choices with a pen, much the way they'd fill out a lottery ticket or SAT exam.

At least one of the two systems, the ES&S DS200 (to be used in New York City, among other jurisdictions) has an unusual feature: unlike most optical scan systems, if a voter makes a mistake (voting for two candidates when she was only entitled to vote for one, for instance), the machine doesn't "spit" the ballot out and direct the voter to correct her mistake. Instead, it keeps the ballot and gives the voter the opportunity to either cast the ballot as is (in which case, the mistake will remain, and the voter's vote in that contest not counted) or request the ballot back, to make a correction.

We can imagine reasons why election officials may want systems that keep the ballot rather than automatically sending them back to the voter for correction. Automatically sending the ballot back would likely slow the process down (everytime a voter made a mistake, the machine would send back the ballot, the voter would have to review, and all the while other people would be waiting on line), and there are legitimate concerns about voter privacy (will other voters or pollworkers see the filled out ballot when it comes back out of the machine?).

But in a state like New York, where voters are used to machines that won't allow them to overvote (it is impossible to vote for more candidates than you are allowed to vote for on lever machines), where there is fusion voting (the same candidate listed twice or three times under different parties in the same contest), and there are very often contests where voters can choose up to two or three or four candidates, there is reason to be concerned that a signficant number of people will overvote ballots, and as a result, won't have their votes counted. This is particularly worrisome because, as a Brennan Center analysis has shown, New York's current requirements for what must be on a paper ballot makes them more confusing than necessary to use.

A recent study out of Florida, confirms that this is a potentially serious concern. The authors of this study argue that counties which used the ES&S DS200 had an overvote rate on Election Day 2008 that was as much as 18 times (!) that of the systems used in other Florida counties (if a ballot is overvoted, it will not be counted). They have also told me in an interview that they believe the Dominion Imagecast (the other system to be used in New York State) has the same feature and will result in similarly high overvote rates.

Paul Malischke, a voting rights advocate in Wisconsin, tells me that his state conditioned its purchase of the DS200 on a promise from ES&S that the machine be reconfigured to immediately return a ballot to the voter if it detects an overvote.

It's not clear to me that this is possible in New York, and no doubt, given their privacy and voting time concerns, many election officials would be opposed to such a reconfiguration. But at the very least, the State Board and legislature should be looking at this issue and figuring a way to address it.

In this letter, the Brennan Center, Usability Professionals Association, Center for Plain Language and Design for Democracy, urge the State Board to conduct usability testing to figure out how best to educate voters and poll workers about this potential problem, and to figure out what changes to the state's ballot layout and design requirements would make it less likely that people will overvote. We have yet to receive any response.

In a close election, as Florida and a few other states could tell New York, large numbers of overvotes can be an election nightmare, resulting in recount litigation, and shaking the faith of the public in their voting systems.

The State Board and State legislature should be taking action, soon, to address this problem. It should be addressed before these machines are deployed statewide, not after a close election, when the problem could lead to a post-election meltdown.

Thursday, January 14, 2010

Ethics Reform Bill’s Financial Disclosure Changes are Inadequate Half-Measures

By Kelly Williams

Determined to keep their comfortable berths, state lawmakers yesterday proposed only the slightest changes to their personal financial disclosure obligations: forms will now be made available to the public online, and a previous practice of blacking out the amounts of income received will be eliminated. Also, one additional category of income was added to the disclosure. Calls for officials to itemize their sources of income, including clients of law practices, were ignored.

Instead, in a half-measure meant to patch over recent corruption scandals involving the “consulting” practices of Joseph Bruno and Antonio Seminerio, going forward officials will be required to report income in excess of $1,000 from consulting practices including the names of consulting clients, the compensation received and a description of the nature of the services rendered in exchange for such compensation. “Consulting services” is not defined in the bill other than a statement that this new reporting requirement does not apply to law practices, real estate brokers, anyone licensed by the Department of Education or several other regulated professions. People in these professions are allowed to accept paid work from anyone, without having to provide any additional information to the public about the nature of the services rendered.

Responding to justified protests, lawmakers argued that a back door disclosure rule, that requires registered lobbyists to disclose “reportable business relationships” they (or their clients) have with officials, gets us to the same place as a disclosure requirement for legislators, or close enough. We strongly disagree.

On its face, at this time of crisis in faith in our state government, it is simply wrong to shift responsibility for meaningful personal financial disclosure from our elected public officials to anyone else, even those who have been tarred as "registered lobbyists."

But digging a little deeper, legislators who accept paid work and whose outside employers fail to file the proper forms will face no consequences at all under the proposed bill, presumably even if they have knowledge of this failure. Businesses and others who employ legislators and are not themselves registered lobbyists or do not engage a professional registered lobbyist nonetheless have great influence over the decision-making of a legislator and will not have to disclose this relationship.

A “reportable business relationship” is defined in the bill as: a relationship in which compensation is paid by a lobbyist or by a client of a lobbyist, in exchange for any goods, services or anything of value, the total value of which is in excess of one thousand dollars annually, to be performed or provided by or intended to be performed or provided by (i) any statewide elected official, state officer, state employee, member of the legislature or legislative employee or (ii) any entity in which the lobbyist or the client of a lobbyist knows or has reason to know the statewide elected official, state officer, state employee, member of the legislature or legislative employee is a proprietor, partner, director, officer or manager, or owns or controls ten percent or more of the stock of such entity (or one percent in the case of a corporation whose stock is regularly traded on an established securities exchange.

In the ethics bill, the legislature has managed to craft the narrowest possible response to recent corruption scandals. Left looming is the larger question about whether the public has the information it needs to evaluate whether officials who accept paid employment are making decisions in their official capacity without regard to the interests of their employers. The best protection would be a system like those in place in states like Washington, California and Alaska, which require disclosure of all outside sources of income, including the names of important clients, as well as parties to business transactions that result in commission and incentive income.

Wednesday, January 13, 2010

Diaz is Right

Earlier today, Senator Reuben Diaz said that it is “not fair” that lawyers and members of other “protected professions” will be exempted from fully disclosing their sources of outside income under the new ethics bill.

Diaz is right. In fact, although we haven’t seen the legislation yet, it looks like it is actually a backwards step – rather than not forcing lawyers to disclose outside income as is now the case, the new bill would explicitly exempt lawyers and others from certain reporting requirements.

Requiring lawyers to disclose outside income, which we’ve advocated recently, is nothing new. Legal ethics experts agree such disclosure is not only possible, but desirable. There are a number of states, including California, Alaska, Washington, and Louisiana that require such disclosure. The procedures adopted in these states make it clear that exceptions can be made for the rare cases where identity of a client should be kept confidential. Given the recent corruption scandals in our state, New Yorkers deserve access to at least as much information about our legislators’ outside income as the citizens of these states.

Shorter Brennan Center Comment on Ethics Deal

A bill that's supposed to bring greater disclosure and openness to Albany should, at the very least, be subject to public hearings. From what we can tell, this bill has good things, bad things, and missing things. We're all for speedy action, but that should not mean shutting out experts and the public entirely. That would almost certainly result in a much weaker bill than New York deserves.

Brennan Center Statement on Today's Ethics Proposal

Ethics Reform Should Include Open, Public Discussion

Given New York’s growing number of corruption scandals, the Brennan Center is pleased to see the State Legislature committed to passing ethics reform. However, we caution against rushing to pass a measure of such importance without providing an opportunity for public input. The Brennan Center urges the legislature to open this bill to scrutiny in public hearings across the state with an opportunity for citizens to voice their opinions and suggest modifications and improvements.

At numerous points during this morning’s press conference, supporters of the bill urged “speedy action” and indicated that the majority conferences in each chamber have the votes to pass this legislation rapidly. While we agree that there is an urgent need for action to fix New York’s broken ethics and campaign finance enforcement systems, a robust and open legislative process is more important than ever.

It would be deeply ironic if a bill touted as a step toward transparency and openness in government were crafted exclusively behind closed doors, without the opportunity for hearings and public input. Part of the process of ethics reform should be an open, meaningful dialogue between the public and its lawmakers, not the product of closed-door sessions governed by self-interest.

We have not yet had an opportunity to review the details of the new proposal, but based on what was said at today’s press conference, the proposed legislation promises to make some important improvements.

We’re encouraged to see that lobbyists will have to disclose payments to legislators; there will be more independent oversight over the executive branch; and the Board of Elections’ capacity to monitor and enforce compliance with existing campaign finance laws may be strengthened.

At the same time, we have some serious concerns about a number of provisions in the bill, including:

  • The body charged with overseeing the legislature will be appointed by legislative leaders;
  • Certain members of the legislature, including lawyers, will needlessly be given a blanket exemption from disclosing outside sources of income; and
  • Two commissioners of either political party on the Board of Elections would have effective veto power over the newly created “enforcement counsel” to hold hearings or issue subpoenas in support of his investigations.

After the public has had an opportunity to weigh in on this legislation, legislators should revise the bill based on this input, with a focus on strengthening the bill’s campaign finance provisions, requiring independent oversight of the legislature, and requiring all legislators – regardless of profession – to fully disclose sources of outside income.

Torres-Spelliscy on Albany: The First Step Must be Basic Reform

Our own Ciara Torres-Spelliscy has an op-ed in today's Albany Times Union making the point that the state can't move forward until it takes basic steps to put its house in order.

Monday, January 11, 2010

Gillers: Protests of Lawyer/Client Privilege 'Laughable'

We can't say we're shocked that some legislators have been crying foul over some of Governor Paterson’s proposed ethics reforms, but no protest rings less true than that of the legislature’s lawyers who protest that disclosing their legal clients in the course of ethics reporting will violate attorney-client privilege or client confidence.

We don’t think these concerns are legitimate, and in Friday’s issue of the New York Law Journal ($$ -- subscription required), ethics expert and NYU Law Professor Steven Gillers made it abundantly clear that he doesn’t either:

Professor Stephen Gillers of New York University School of Law, a frequent commentator on professional ethics, said that as a general rule "there is no privilege shield for the identification" of a legal client in New York and he accused lawmakers who say they worry about violating the privilege of "crying wolf."

"Their claim that they are boxed in by the ethics rules is totally phony," Mr. Gillers said in an interview. "When people in my line of work look at the rules, it is laughable, transparently false."

A consensus is beginning to form in the legal community that there is no reason that New York couldn’t put in place a carefully worded disclosure requirement – with the appropriate protections – to remove the veil of secrecy surrounding lawyer-legislators’ outside income.

We hope legislators are aware of this consensus. If they're not, and they fail to add a disclosure requirement for lawyer-legislators in whatever ethics bill is now in development in Albany, we hope they will allow time for public comment, so the legal community can make them aware of that consensus. "Ethics Reform," after all, is in large measure supposed to be about bringing sunshine into government. It would be the ultimate irony, even in Albany, to create a new proposal behind closed doors . . . and then pass it without time for public comment or hearings.

Wednesday, January 06, 2010

Ciara Torres-Spelliscy on WBAI

Ciara, Counsel in the Brennan Center's Campaign Finance Reform program, lent her expertise to WBAI's evening news to discuss Governor Paterson's proposed ethics overhaul, which would close some of New York's biggest contribution loopholes.