Day 2: Some Friendly Suggestions

The New York Times leads with stories about Spitzer's likely push to change Albany's culture, and more particularly to overhaul the state's ethics laws.

The Brennan Center, Citizens Union, Common Cause New York, League of Women Voters New York and NYPIRG think the new Governor is on the right track. In Albany today, at 11 a.m., we have presented our "top 10 list" of needed ethics reforms. They are as follows:

Create an Independent Ethics Commission. Create a commission with jurisdiction over statewide elected officials, state officers and employees, state legislators, and legislative employees.

End “Pay to Play.” The infusion of large sums of money by businesses and unions with public contracts and lobbyists into the campaign coffers of elected representatives has generated a widespread public belief that contributors are “paying” those officials for the opportunity to “play” with the government. New York should join a growing number of states and localities with “pay to play” restrictions on lobbyists and public contractors.

Ban honoraria. As of January 2006, at least 23 states prohibited honoraria in some manner if offered in connection with a legislator’s official duties. Giving speeches and participating in public policy discussions are important parts of a public official’s job. To allow groups to offer state lawmakers honoraria for performing these duties, however, creates a real or apparent conflict of interest for public officials.

Restrict the personal use of campaign contributions. Restrictions on the personal use of campaign funds must be strengthened and enforced.

Strengthen the “revolving door” ban. Bans on “revolving door” lobbying seek to restrain former state government and party officials from using their government connections to benefit themselves, their clients or their business interests after they leave office.

Create more stringent requirements for financial disclosure for public officers. Financial disclosure requirements for state employees must be strengthened. It’s important that any ethics reform include ways to enhance the requirements for disclosure of financial information by state employees in various ways.

Require ethics training for lobbyists and for the governor, legislators, legislative employees, state agency officers, and state agency employees. Once good laws are on the books, the good way to prevent ethics violations is through education. A reform package should expressly require ethics training for all state officials, including the governor, and legislators, as well as continuing education in these areas provided by the state ethics commission.

Strengthen accountability of “member items” and other lump sum appropriations. Some of the most recent scandals have resulted from misuse of “member item” spending. Any ethics reform package should address such abuses. At the very least, the choices made about how to spend this money should be made public. If a member item system is to be continued, then a fairer allocation system coupled with better oversight must be established.

Strengthen ethical standards for public officials. We recommend that a new ethics law prohibits business relationships between public officials and lobbyists and those with receive government contracts. Moreover, a new law must make it clear that public officials cannot use public employees in order to provide personal services.

For more detail on these recommendations, look here.

Categories: General, Government Ethics

New York State officials should take a lesson from Albany-area colleges

In stark contrast to the handling of impropriety in the Legislature, when there was evidence of an ethics problem at Albany-area Rensselaer Polytechnic Institute, Professor Linda Layne took swift action to deal with the issue. She is pushing for an honor code at the school after discovering a student cheating on a quiz in – get this – her ethics class. Similarly, Union College just received a grant that would give professors a stipend for incorporating ethics lessons into their curricula.

However, just as legislators inevitably push back against new ethics proposals, the Times Union reports that students at RPI and Union College are skeptical about the need for ethics education and tougher enforcement. Along with many legislators, the students feel that they simply don’t have a problem.

These protests seem to be misguided. It turns out that, according to a study by the Center for Academic Integrity, “70 percent of students acknowledge some cheating on most campuses.” Yet schools with honor codes see about one-third to one-half the amount of serious test cheating experienced by schools without a similar ethics policy.

Wouldn’t it be nice to see the same improvement in state government?

We think it’s time for lawmakers to take a page from Professor Layne’s book and adopt tools to curb ethics violations and encourage fair and decent conduct. It’s time for lawmakers to pass legislation that would create a single agency with enough teeth to effectively oversee ethics in all aspects of New York government.

Categories: General, Government Ethics

End-of-Session Ethics Push in Albany

The Daily Star Online reports that Assembly Democrats have introduced an ethics package with one week left in the Legislature’s official session for the year.

The proposal would ban most gifts from lobbyists, place stricter limits on the use of campaign accounts and restrict the ability of top legislative employees to leave their positions for jobs as highly paid lobbyists. It would also ban public officials from paid speaking engagements. But...

some government watchdogs question whether the proposal is a sincere attempt to change government in Albany or an election-year ruse to appease voters angered by corruption and dysfunction at the capital…

Horner [of NYPIRG] called the package "a step forward" but said it left out several proposals good government groups have been looking for, such as the creation of an independent ethics panel. Also, when it comes to lawmakers’ use of campaign cash for personal expenses, the proposal leaves it up to the notoriously weak state Board of Elections to develop its rules against it.

We agree. Although this bill is a step in the right direction, it falls short of comprehensive reform. The Brennan Center, along with NYPRIG, Common Cause and the League released a model ethics bill in February of this year. Our bill goes further. It would create an independent ethics commission, ban personal use of campaign contributions except for certain di minimums items so that candidates can’t pay cell phone bills and buy pool covers with supporters’ donations, and ban “pay-to-play” practices, limiting the contributions that lobbyists and government contractors can give to candidates.

Categories: General, Government Ethics

Ethics Breakthrough?

No, we're not talking about the recent changes in ethics and lobbying rules in Congress.

Believe it or not, we're talking Albany. Yes, Albany.

Michael Gormley of the AP reports that:

High level legislative and executive branch officials are negotiating to create a single, far-reaching ethics agency that could break down jurisdictional walls that currently limit investigations, officials familiar with the talks said Thursday.

If the agency is created, it would mark a historic step toward reforming a state government culture derided for years by critics and government watchdog groups as unseemly, even corrupt.

We believe if this happens, it will be an extraordinary step. But also not so extraordinary. As Gormley notes:

A report by NYPIRG and the Brennan Center for Justice at New York University School of Law found 39 states have a single ethics commission for executive and legislative branches.

It seems that in Albany -- at least in matters related to ethics, lobbying and campaign finance -- to be ordinary is extraordinary.

Categories: General, Government Ethics

Money in Politics This Week

Every Friday, the Brennan Center will be compiling the latest news concerning the corrosive nature of money in New York State politics—and the ongoing need for public financing and robust campaign finance reform. We’ll also be linking to dispatches from around the country highlighting the national scope of this crisis. This week’s links were contributed by Syed Zaidi.

For more stories on an ongoing basis, follow the Twitter hashtag#moNeYpolitics and #fairelex.

CAMPAIGN FINANCE AND ETHICS NEWS

NEW YORK

JCOPE Releases Report on Lopez Scandal to Legislative Ethics Committee

The New York State Joint Commission on Public Ethics sent to legislators its long-awaited report on sexual harassment complaints against sitting Assemblyman Vito Lopez.  Last year, the Assembly secretly approved a $103,000 settlement to end sexual harassment allegations against Lopez by two female staffers. Gerald B. Lefcourt, a Manhattan attorney representing Lopez, confirmed that the report covers sexual harassment claims against Lopez and the $103,000 settlement using public money. The Legislative Ethics Commission will make the JCOPE report public within 45 days.

NATIONAL

Florida House Bill Would Practically Obliterate Contribution Limits

The Florida House of Representatives is considering a legislative proposal that would substantially increase the amount of money a person can contribute to a political campaign. HB 569 is a top priority for Speaker Will Weatherford. It would allow contributors to donate up to $10,000 to state candidates, as opposed to the current limit of $500. In exchange for the higher contributions, the bill would mandate online disclosure of contributions within 24 hours. Thus far, HB 569 has cleared the House Ethics and Elections Subcommittee on a 10-2 vote and is currently in the Appropriations Committee. According to Adam Skaggs, senior counsel at the Brennan Center, the measure would serve as a form of incumbency protection. A Brennan Center study found that, compared to states with contribution limits of $2,000 or more, the likelihood of an incumbent having a viable challenger increases by 15 percent in states where the contribution limit is set to $500 or less. The average state contribution limit to legislative candidates in America is $4,000, according to the National Conference of State Legislators. According to Lloyd Leonard of the League of Women Voters, "it is not a good deal for the public to raise contribution limits so that special interest groups can contribute directly large amounts; it is simply not a tradeoff that is worth considering."

Gun Lobby Spending Big in Congressional and State Races

Following the series of tragic incidents involving gun violence throughout the United States, interest groups on both sides have ramped up their efforts in state and federal politics. The most well-known and active group by far, the National Rifle Association (NRA), spent $18.6 million last year in Presidential and Congressional contests through its PAC and lobbying arm. The NRA has been an aggressive player in the political money game, frequently joining lawsuits concerning campaign finance reform and significantly outspending gun control proponents. However, new opposition groups are emerging. The pro-gun control Independence PAC, backed by New York City Mayor Michael Bloomberg is involved in an Illinois Democratic Primary, running $660,000 worth of ads against Congressional candidate Debbie Halvorson. Battle lines are being drawn in state legislatures as well.  In Pennsylvania, Democrats have introduced a series of gun control bills, and it remains to be seen how their effort will affect their reelection campaigns. Gun rights advocates in the state spent approximately $10,000 in the last election cycle to help elect friendly candidates. An interactive chart of aggregate donations on the issue is available at the Sunlight Foundation’s website.

Representative Jesse Jackson Jr. (D-IL) Admits Violating Campaign Finance Laws

Former Representative Jesse L. Jackson Jr. (D-IL) has admitted to violating campaign finance laws in a plea deal with federal prosecutors. Representative Jackson was reelected to Congress in November of last year. He resigned shortly thereafter, citing ongoing health problems. Federal agents were investigating Jackson’s Congressional campaign fund for irregular transactions in 2009, 2010 and 2011. Jackson allegedly utilized the funds to purchase a $40,000 Rolex watch, furniture and travel expenses for a friend. Federal law prohibits the use of campaign funds for personal expenditures. At the time of his resignation, the House Ethics Committee was conducting a probe into separate accusations that Jackson offered to raise money for former Illinois Governor Rod Blagojevich (D) in exchange for being appointed to Barack Obama’s vacant Senate seat. The independent Office of Congressional Ethics referred the matter to the Ethics Committee in August of 2009 but the Committee’s investigation was delayed while the Department of Justice prosecuted Blagojevich on 17 corruption charges.

Senator Wyden and Murkowski Detail Legislative Proposal on Disclosure

US Senators Ron Wyden (D-OR) and Lisa Murkowski (R-AK) recently announced a bipartisan plan to institute campaign finance disclosure. More than $400 million in unaccountable dark money was spent during the 2012 election cycle by non-profits registered under the 501(c) section of the tax code. These non-profits operate as political organizations, funneling millions into campaigns without disclosing their donors. The legislation would require all groups spending at least $500 in political campaigns to register and disclose a majority of their donors. Television or radio ads, and robocalls would be subject to “stand by your ad” provisions mandating disclosure of the group’s top three donors. In addition, FEC and the IRS would have to construct joint regulations on donor disclosure, along with an online database covering all political committees. "When people hear that their tax dollars are being used to subsidize what are essentially campaign operations that call themselves social welfare organizations and get these tax breaks and anonymity, they're just flabbergasted," Senator Wyden said about conversations he had at town meetings in Oregon. “People are getting furious.”

Ongoing Menendez Scandal Illustrates Need for Reform

Last week, Reform NY informed readers about the ongoing ethics scandal between Senator Menendez (D-NJ) and a high profile donor, Dr. Solomon Melgen, from Florida. Menendez contacted the Centers for Medicare and Medicaid Services in the past to complain about its finding that Melgen had overbilled the government $8.9 million in Medicare reimbursements. He also attempted to pressure the Department of Homeland Security not to donate port security equipment to the Dominican Republic because it threatened a lucrative contract belonging to a company run by Melgen. The Senate Ethics Committee is currently investigating Senator Menendez’s involvement in these matters. Melgen’s direct and indirect contributions to Menendez, the Democratic Party and its affiliated Super PACs amount to more than $1 million. Government watchdog groups are urging the Senator not to engage in any business related to Melgen in congressional committee deliberations for the term of the ethics probe. “He should be recusing himself from any discussions or negotiations about port security in the Dominican Republic,” said Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington. Craig Holman, a government affairs lobbyist at Public Citizen, stated Menendez should “recuse himself if there is a conflict of interest that could cast the public’s doubt on any decision he might make.”

Still Waiting on the Promised Ethics Bill

The New York Times Saturday Editorial “Three Men in Room” adequately captures the irony behind the governor’s ethics reform negotiations with the Speaker of the Assembly and the Senate Majority Leader as plans to create a more open government are negotiated behind closed doors. On the table are the issues which form the backbone of a meaningful ethics reform package: the creation of a unified ethics commission, financial disclosure requirements of all outside income for public officials (including from the 45 attorney-legislators), and a system of publicly financed elections.

Aside from the irony of advocating for openness and transparency behind closed doors, recent history suggests that an ethics bill negotiated without public discussion will result in failure. As we have previously noted, Albany’s last attempt ethics reform, the Public Employees Ethics Reform Act (PEERA) of 2007, was negotiated, drafted and adopted without public discussion or debate. Since then, Albany has consistently continued to be rocked by scandals in the legislature and special interest money has continued to flood the state. An ethics bill that does not allow for public input will likely result yet another failure.

Now that the budget has been passed and the focus is on ethics the Three Men in a Room must make their draft bill available for public comment. The legislature must debate, hold hearings, and allow amendments on this bill. Good government groups, academics, reformists, current ethics overseers and the general public must be given the opportunity to review and comment on the bill. As the Times rightly notes: voters “are the governor’s best allies for real reform.”

Other States Provide Better Models for Ethics Oversight

It is the beginning of election season, and calls for ethics reform in New York State abound. Helping us to sort through this “Christmas in May” situation is a great pro bono law firm, Kaye Scholar. Associates Leah Kagan and Lindsay Moilanen, overseen by Partner Jim Herschlein, have been examining the structures and powers of ethics commissions in several states to give us a means of comparison in New York. We expect that in the coming months the project will serve as a trove of good ideas as reform proposals surface.

Most calls for reform from outside Albany include an end to the self-policing nature of oversight. Currently, separate ethics commissions are charged with oversight of the legislature and executive branch in New York State. The Legislative Ethics Commission is comprised of nine members, four of whom are legislators, with the remaining five members appointed by legislative leaders. The 13-member Commission on Public Integrity oversees statewide elected officials and lobbyists. Though both Commissions have the power to investigate, fine and refer extreme cases for further action, these are rare occurrences. Simply put, members of both Commissions owe their positions to the elected officials who appointed them.

All agree that what is needed is an atmosphere filled with powerful disincentives for corrupt behavior. And intuitively, self-policing ethics oversight would be the wrong message going forward. Yet publicly, elected officials express concern that a strong, effective ethics oversight body would be manipulated for political means, hindering real change to this structure.

In fact, preliminary research has shown that several states have removed oversight from the hands of legislators and given it instead to entities dominated by an independent majority. Spending a few minutes examining the territory of ethics oversight reveals that self-policing practices could be the poorest option going forward.

A few examples:

In Louisiana, a single ethics commission oversees the executive and legislative branches. The eleven-member commission is selected by the governor and legislature from a list of nominees put together by a nominating committee comprised of the presidents of eight of the state’s leading private universities.

In California, the Fair Political Practices Commission, established after a voter ballot initiative in the 1970’s, has five members, none of whom are appointed by the legislature. The five commissioners are selected by the Governor, Attorney General, Secretary of State and Comptroller, with not more than three members from the same political party.

In Washington State, separate ethics commissions oversee the legislature and executive branches. However, the Legislative Ethics Board consists of nine members, only four of whom are appointed by legislators. The remaining five are citizen members, four of whom are chosen by the governor from lists submitted by legislative caucuses, and the fifth elected by the other four citizen members.

In Alaska, legislative ethics are overseen by two separate entities, the Senate and House Subcommittees. These subcommittee consist of seven members each, two of whom are legislators, the remaining five public members are selected by the Chief Justice of the Alaska Supreme Court and ratified by two-third of the full membership of the Senate or House. The legislative members of these subcommittees cannot serve as chair or vice-chair of these committees.

In Connecticut, ethics enforcement for both the executive and legislative branches is overseen by the nine member Citizens Ethics Advisory Board. Though legislative leaders appoint six of the nine members, two of the six are appointed after being nominated by “a citizens group with an interest in ethical government.” To further minimize charges of politically motivated enforcement actions, complaints are submitted to a randomly selected judge trial referee for findings of probably cause. The judge trial referee is selected by the judicial branch in Connecticut from a list of retired judges who have volunteered for this duty. After a finding of probably cause, a new judge trial referee is selected to preside at the public hearing.

We encourage reform advocates to consider adopting one or some combination of the above examples, or to engineer a new structure. And also, to stay tuned to these empirical comparisons.

Another Call for a Unified Ethics Commission and Client Disclosure

The New York State Bar Association has joined the chorus of good government groups calling for broad reforms to New York State’s ethics laws. In a lengthy report, the NYSBA Task Force on Government Ethics calls for the creation of a single ethics overseer with jurisdiction over the executive branch, the legislature, and lobbyists. Notably, the NYSBA report also calls for more comprehensive disclosure of sources of outside income: “Source of income disclosure should be broadened to include both direct and indirect sources of income,” thus joining the Brennan Center, the New York City Bar Association and others in seeking meaningful financial disclosure from public officials, including those who work as attorneys.

Calls for reform consistently note that there are times when client disclosure is not appropriate, such as instances where the client is a minor or involved in an undisclosed matrimonial matter. Regrettably, we do not agree with the Task Force’s recommendation that the decision about whether to redact a client’s name could be made solely by the public official who serves as her attorney, and that this decision would not be subject to review by the ethics commission (p. 24-25). Other states with comprehensive client disclosure have instituted adequate redaction review procedures for their public officials that more fairly balance privacy concerns with the public interest.

Also, we disagree with the Task Force when it states, without explanation, that

“Attorneys should not be subject to the requirement that income derived from a particular representation be stated by income category. Disclosure that the attorney has received income above the reporting threshold from the client is sufficient, and lessens the intrusion into the attorney-client relationship.”

Public officials who are also attorneys should not be given this unique and unnecessary privilege from a transparency law. Secret fees paid to our public officials are the exact issue that needs to be addressed by a new, better law.

Money in Politics This Week

Every Friday, the Brennan Center will be compiling the latest news concerning the corrosive nature of money in New York State politics—and the ongoing need for public financing and robust campaign finance reform. We’ll also be linking to dispatches from around the country highlighting the national scope of this crisis. This week’s links were contributed by Matthew Ladd.

For more stories on an ongoing basis, follow the Twitter hashtag #moNeYpolitics and #fairelex.

New York Campaign Finance and Ethics News

1. New York’s Joint Commission on Public Ethics released its 2011 lobbying report this week, which found that the lobbying industry spent a record sum of $220 million last year in its efforts to influence state legislators. As JCOPE’s Executive Director Ellen Biben noted, “Apparently lobbying is recession proof.” The full report can be read here.

2. While JCOPE is an improvement on its predecessor, the ethics enforcement agency was criticized this week for neglecting to focus on legislators’ behavior in their home districts—for instance, Pedro Espada’s embezzlement scandal, which occurred not in Albany but in Espada’s home district in the Bronx.

3. Bill Mahoney of NY PIRG writes in Wednesday’s Times Union that in order for a public campaign financing program to succeed in New York state, it must be accompanied by an overhaul of the state’s current ineffective system. Comprehensive campaign finance reform in New York, Mahoney writes, must also include closing the loophole on “housekeeping” contributions to party committees, setting up regular audits of candidate’s campaign accounts, and giving stronger enforcement power to the state’s toothless Board of Elections.

4. Former Bloomberg aide and convicted felon John Haggerty still has friends in New York: the Daily News reports that three former aides to ex-Gov. Pataki have created a legal defense fund to pay his attorneys. While legal, the defense fund raises ethical questions concerning responses in Albany to illegal conduct by those working in government. Haggerty was sentenced last December to up to four years on charges of money laundering and grand larceny, for his siphoning $750,000 from election funds to buy a house in Queens.

5. US Representative Charles Rangel (D—NY), who was found guilty in 2010 of eleven ethics violations by the House Ethics Committee, is making headlines again. Rangel and his campaign have paid a $23,000 civil fine after it emerged that he used a rent-stabilized apartment as a campaign office, which effectively amounts to acceptance of campaign contributions beyond the legal limit.

National Campaign Finance News

1. The US Senate held a legislative hearing this week on the DISCLOSE Act of 2012, a bipartisan bill that would create more detailed disclosure requirements for super PACs, corporate donors, unions and other politically active organizations. In the face of Republican opposition to the bill, Sen. Charles Schumer (D-NY) declared that the flood of spending unleashed by Citizens United “corrodes the very essence of our democracy.” The announcement of the hearing on the Senate Committee on Rules and Administration includes a webcast of the hearing, and testimony offered by the Brennan Center for Justice in support of the DISCLOSE Act can be read here.

2. Prior to the Senate hearing, Public Campaign pointed out that although votes on a similar bill from 2010 fell along party lines, several Republican senators have publicly supported heightened transparency requirements for large campaign donors at earlier points in their careers, “when transparency wasn’t a dirty word.”

3. The New York Times opened this week with two hard-hitting editorials on campaign finance and legislative ethics. Sunday’s Times pointed out that the floodgates opened in 2010 by Citizens United have resulted in more than $92 million dollars of outside spending during the current election season—more than double the amount spent by outside groups during the same period in 2008, and six times the amount spent in 2004. The misguided ruling has not only “allowed wealthy organizations and individuals to drown out other voices in the campaign,” but has also set a dangerous precedent by narrowing the definition of corruption to include only bribery, a characterization that is “intellectually dishonest,” since “the broader problem is the ability of moneyed interests to put into office those who support their political agendas or financial interests.”

4. Monday’s Times called attention to a related problem: super PAC spending may allow some federal government contractors to indirectly contribute to political campaigns, which would violate a ban on contractor contributions that has stood since 1940. Although many super PACs still adhere to the decades-old ban, the Times reports that Mitt Romney’s super PAC has accepted donations totaling nearly $900,000 from at least five separate government contractors, a decision whose legality is uncertain given “the new unregulated, unlimited jungle of campaign finance” created by Citizens United.

5. To mark the ten-year anniversary of the passage of his 2002 Bipartisan Campaign Reform Act, Senator John McCain stated in an interview that Citizens United has left parts of the bill in tatters, and that the consequences of the Supreme Court’s ruling “are manifesting themselves every day in what will someday be, sooner rather than later, a huge scandal.” BCRA co-sponsor and former senator Russ Feingold was similarly critical, declaring that Citizens United “has turned the election system into a joke.”

6. An Associated Press review of Mitt Romney’s campaign contribution records sheds some much-needed light on the “bundlers” who have steered millions of dollars to Romney’s war chest, and whose identities the Romney campaign has declined to make public. Although federal law only requires disclosure of bundlers who are also registered lobbyists, both GOP and Democratic presidential candidates have traditionally disclosed the identities of their top fundraisers. The Romney campaign is a rare holdout.

7. Partisan gridlock and bureaucratic inertia have rendered the FEC increasingly unable to exercise its enforcement power, Politico reports, finding that the FEC’s inaction has left “campaigns and super PACs to test the boundaries of the new campaign finance world” with little fear of effective oversight by the federal government. The Campaign Legal Center compared the FEC commissioners to “the cops in the doughnut shop” for their chronic inaction.