Questions Raised about NYC's Voting Machine Selection Process

Yesterday, Dominion, the manufacturer of one of the two optical scan machines certified for use in New York State, filed suit in federal court to enjoin New York City from awarding a contract to the manufacturer of the other certified machine, ES&S, which narrowly beat Dominion in a city Board of Elections evaluation.

In its memorandum of law, Dominion argues that the Board of Elections ignored procurement laws and procedures and established its own procurement process that did not make clear the criteria for selection. According to the memorandum, ES&S received extra points for optional features that cannot legally be used in New York.

Dominion isn’t the only one suspicious of New York City’s voting machine selection process. Last week, the U.S. Attorney’s office issued subpoenas to several elections commissioners in connection with the machine selection process, and last month one of the lobbyists hired by ES&S to further its bid was indicted on corruption charges.

It is entirely possible that there was no wrongdoing on the part of the Board of Elections, but it seems pretty clear that there could have been more transparency in the process, and, as we’ve written before, the Board could have – and still should – make its contract with either manufacturer contingent on configurations that prevent unnecessary disenfranchisement by overvoting.

Concerns About New York's Voting Machines: An Update

As we blogged recently, the Brennan Center, along with a coalition of other voting rights and good government groups, has called upon the State Board of Elections to take steps to prevent the alarmingly high overvote rate seen in other jurisdictions using the optical scan voting machines selected for use in New York.

Our primary objective is to have the Board require the machines’ manufacturers to reconfigure the units to automatically reject overvoted ballots – a function that at least one of the manufacturers says can be customized during configuration. We’d also like voters to receive a clearer error message when there is a problem with their ballots.

The Board of Elections spoke with our coalition last Thursday, and agreed to take the following steps:

1. Determine whether the reconfiguration of both certified optical scanners to automatically reject overvotes requires a modification to the configuration files or to the source code.

2. Determine whether recertification is necessary for changing the scanners’ handling of overvotes.

3. Determine the technical requirements for modifying error messages for both optical scanners.

4. Determine whether both optical scanners can display an error message when automatically returning an overvoted ballot.

We will follow up with the Board of Elections to learn their findings in these four areas and to continue to work toward what we understand to be a relatively easy change that could save tens of thousands of ballots. The Board will discuss this issue tomorrow at a meeting that will be webcast live on its website.

The Monserrate Legal Battle: A Brief Primer

Tuesday’s vote to expel Hiram Monserrate from the Senate is the latest development in one of the livelier constitutional debates in New York since last summer’s Senate coup. Monserrate’s attorneys filed a request for a temporary restraining order and preliminary injunction delaying his expulsion in federal court today.

Monserrate’s supporters rely on two arguments as to why the Senator’s ouster is illegal. First, they argue that his removal denies his right to due process of law, and that only his constituents can legally remove him from office (by voting him out at the next election, as New York doesn’t have a recall process).

Black’s Law Dictionary defines due process, which is guaranteed under the New York and United States constitutions, as “[t]he conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case.”

Others argue that the ‘rules and principles’ in question here are codified in a section of legislative law that grants the Senate the authority to decide the case. This section reads: “Each house has the power to expel any of its members, after the report of a committee to inquire into the charges against him shall have been made.” As followers of the Monserrate saga know, the Senate did, in fact, convene a committee to inquire into the charges against the Senator, and Tuesday’s vote conforms to the recommendations made in the committee’s final report.

The second argument against expulsion made by Monserrate’s attorney is that the Senate lacks the constitutional authority to expel a member. The attorney, Normal Siegel, argues that given that New York’s colonial charter granted the legislature the right to expel its members, when the state constitution was changed in 1821 to remove a clause stipulating that the state legislature would “do business in a like manner as the assemblies of the colony of New York,” it deliberately disallowed expulsion.

At least six members of the legislature have been expelled since 1821, including five Assemblymen accused of disloyalty on account of their affiliation with the Socialist Party in 1920. That hasn’t settled the debate over constitutional authority to expel, however. In 1987, an Assembly committee considered whether it had the authority to expel an Assemblywoman who was guilty of payroll fraud. In what is commonly known as the Lipschutz Report, the committee held the same view as Monserrate’s attorney that expulsion is not permissible in the absence of explicit constitutional authority. The Monserrate Committee disagrees, obviously, citing an 1874 legal scholar’s opinion that, “[i]n the states of Massachusetts, New Hampshire, New York, and North Carolina there being no constitutional provision on this subject, the power to expel exists as a necessary incident to every legislative body and may be exercised at the discretion of the assembly and in the normal way of proceeding.”

At the end of the day, it will be up to a judge to sort this out. Let’s just hope that the now nearly dead-even partisan split in the Senate doesn’t precipitate another thorny legal fight over legislative procedure.

A Closer Look at Exemptions to Disclosure Requirements

Senator Schneiderman's bill S. 6794, introduced February 8, is a vast improvement over previous attempts to craft an ethics bill.

Yesterday we described its innovations, including the creation of designating panels and greatly increased financial disclosure requirements, especially the requirement that legislator-attorneys disclose important information about their law practices.

It is fair and correct to also provide a system by which officials can request exemptions from detailed financial disclosure under extraordinary circumstances, such as an official’s part-time work on behalf of a minor concerning a sensitive subject, or the work of a physician required by law to protect patient privacy. S. 6794 provides a mechanism by which an official can request an exemption if she believes that her work “is protected by a legally recognized privilege or unreasonable hardship."

After reviewing this part of the bill, including the proposed process for granting exemptions, we are concerned that the test for granting exemptions may be too broad and should be more carefully drawn.

For example, Washington State’s rules provide: "The [Public Disclosure] Commission is authorized to allow modifications or suspensions of these reporting requirements in a particular case when it finds that "literal application" of the chapter "works a manifestly unreasonable hardship" and that the suspension or modification of the reporting requirements "will not frustrate the purposes of the chapter."

Washington also requires that any modification or suspension be narrowly tailored "only to the extent necessary to substantially relieve such hardship, and only upon clear and convincing proof of such claim." (also WA language). (PDC Interpretation 02-03)

The “deciders” of whether to grant the exemption under the S. 6794 proposal are the members of the relevant ethics oversight commission (the bill left in place the bifurcated system of ethics oversight). In a step towards independent oversight, the bill provides that the legislative leaders and executive branch officials appoint members of designating panels, who in turn appoint members of the actual commissions with jurisdiction over their branch of government. These commissions, arguably not wholly independent, should be given more direction on how to implement these decisions.

Two New Ethics Proposals

Following on last week’s veto of the legislature’s ethics bill, legislative leaders are meeting today behind closed doors to determine whether they have the votes necessary for an override.

The good news is that the bill’s sponsor, Senator Schneiderman, seems to recognize that the legislature’s work isn’t done. Schneiderman introduced two bills, one more ambitious than the other, that amend the original ethics bill to move closer to certain reforms that the governor has cited as necessary for the legislation to win his approval. The two new bills each deal with different issues in the original bill, S6457. Notably, the bill that is narrower in scope has a "same as" number in the Assembly; the more ambitious bill does not.

On Friday, Senator Schneiderman introduced S6792, a technical corrections bill that addresses some of more basic points of contention in the debate surrounding the original legislation by making the following changes:

• Explicitly grants the lobbying commission to conduct any investigation necessary to carry out its mandate, fixing the problem we and others identified with the commission’s mandate to receive referrals but inability to investigate them;
• Establishes a procedure for addressing tie votes on the governing board overseeing the legislative office of ethics investigations;
• Explicitly requires each conference to appoint one legislator and one non-legislator to the legislative ethics commission;
• Creates additional offices on the Board of Elections with deputies of opposite political parties;
• Requires the Board of Elections enforcement counsel to report allegations that she does not deem a violation of law to the Board of Elections for a second opinion; and
• Allows the deputy enforcement counsel to review both preliminary and final investigation files and issue a public, written concurrence or dissent.

This morning - the day that the New York Times ran its fifth editorial calling for legislators who are attorneys to disclose their clients - Senator Schneiderman introduced S6794, a more sweeping bill that consists of a series of reforms meant to strengthen the legislature’s earlier proposals, most notably with respect to the disclosure of outside income:

• Requires officials who practice law to provide (i) the name and address of each client, (ii) the compensation for such services for each client, and (iii) a general description of the services rendered. Individuals practicing law or providing consulting services must provide a general description of the subject matters undertaken by the law firm or business entity. (Interestingly, the bill carves out a large exception for plaintiffs’ lawyers: “Do not list the value of compensation if the services rendered involve a contingency fee as provided by law.”);
• Requires individuals who are partners or shareholders in a law firm to list every client of the firm that provides more than $5,000 in compensation to the firm in the prior year, including a description of the services rendered;
• Establishes designating commissions for the purpose of appointing members of both ethics compliance commissions (the legislative and executive ethics commissions remain separate under the legislation);
• Requires reporting individuals to disclose payments from an entity if the reporting individual solicited business from a third party on behalf of that entity;
• Requires that public officials file a report with the appropriate oversight commission within 30 days of commencing a business relationship with a lobbyist. These reports must describe the nature of the relationship, the amount of compensation and are to be available for public inspection via the internet. (The last version of the ethics bill placed the burden to report business dealings between officials and lobbyists only upon the lobbyist.);
• Increases the number of categories of income, for a total of 15, ranging from under $5,000 to “1.0 million and over" -- to give the public a better sense of the amount of income from each source; and
• Requires filers to include assets and income of a “domestic partner.” The current form requires only disclosure of assets and income of a “spouse.”

We’re glad to see some recognition that the legislature’s work on ethics is far from finished. We’ll be gladder still if both proposals are subjected to thorough public review.

Laura Seago and Kelly Williams

Time To Give Disclosure A More Serious Look

Almost immediately after vetoing the ethics bill on Tuesday, the Governor sent a letter to legislative leaders inviting them to join him in talks intended to go back to the drawing board to produce a stronger bill. The Governor’s four priorities are independent ethics oversight, ending pay-to-play, ensuring that the new ethics system does not give an unfair advantage to the party in power, and ensuring disclosure of outside income.

While the language in the Governor’s letter is vague, the context provided by his previous statements makes it quite clear what he’s getting at, and we take “ensuring disclosure of outside income” to mean requiring lawyers and legislators in other professions deemed ‘protected’ by the legislature’s ethics bill to disclose their clients.

The Governor is in good company. As The New York Times, Capitol Confidential, and New York Law Journal [subscription required] (and, of course, ReformNY) reported on Wednesday, The New York City Bar Association has joined the chorus of legal experts who say that there is no legal or ethical justification for attorney-legislators to withhold information about their clients from the public. Moreover, the Bar Association affirmatively argues that attorneys should be subject to the same disclosure requirements as other legislators.

This argument is too carefully considered and widely supported to ignore.

We're All Concerned About New York's New Voting Machines Now

I blogged two weeks ago about the Brennan Center's serious concern that New York's new voting machines (to be used statewide for the first time this year) may cause massive problems. In short, experiences in Florida and Wisconsin strongly suggest that the way the machines are currently configured will lead to significantly higher error rates for voters, meaning potentially tens of thousands of votes being spoiled for no good reason. Well, we've been joined in our concern by virtually every voting rights and good government group in New York that focuses on these issues, including AALDEF, CIDNY, Common Cause, the League of Women Voters, NAACP LDF, NYPIRG, New Yorkers for Verified Voting and the Women's City Club of New York. You can read a letter from all of these groups to the New York State Board of Elections here. It states in relevant part:

New York’s new optical scan machines will treat overvotes in a way that threatens the voting rights of millions of New Yorkers. As you know, unlike most optical scan systems, the ES&S DS200 and ImageCast machines purchased for New York do not automatically return overvoted or otherwise erroneous ballots to the voter for correction. . .

Overvotes are almost always mistakes and the letter and spirit of the [Help America Vote Act] requires that the state do everything it can to prevent inadvertent errors when voters cast their ballot on Election Day.

We strongly urge the Board of Elections to correct this problem immediately. The New York Board of Elections must require that the ES&S DS200 and ImageCast machines automatically return overvoted or otherwise erroneous ballots to the voter for correction.

The good news is that the fix for this potentially huge problem seems relatively simple. The Board of Elections should be able to request this change from the vendors and significantly minimize the risk of overvotes and spoiled ballots. Let's hope they make this happen, soon. We're going to keep the pressure on, and we'll keep you informed.

New York City Bar Supports Client Disclosure Requirement for Attorney-Legislators

By Kelly Williams

Perhaps this will finally put to rest the claims by some attorney-legislators in Albany that, as much as they would like to provide the public with full disclosure of their outside income, they are legally or ethically prevented from doing so.

Today the New York City Bar Association released a report** that did more than merely state it is permissible for attorney-legislators to disclose the source of their outside income; it explicitly called for attorney-legislators to be included in all disclosure requirements, including requirements that attorney-legislators reveal the identities of their clients. As we have reported in the past, there is no basis for the claims by some legislators that information about the part-time law practices many maintain alongside their official duties, such as the identity of their clients, is privileged and confidential. The NYC Bar report provides further support:

"There is no basis for excluding lawyers from the public scrutiny to which legislators should be held. Requiring lawyer-legislators to make these disclosures will not violate the rules governing attorney conduct and will go a long way toward restoring public confidence in New York State’s governing process and the independence of legislators."

While bar associations can be counted on to urge protection of attorney privileges to the highest degree, the New York City Bar report lays out in simple terms the limited nature of the attorney-client privilege. The attorney-client privilege is an area of the law that is not well understood by the general public; the report stresses that this uncertainty should not stand in the way of meaningful financial disclosure requirements for public officials who maintain private law practices.

The report recommends that financial disclosure reforms include requiring attorney-legislators to reveal the identity of each client, the amount of the income over a minimum threshold from each such client, and a meaningful description of the services rendered in exchange for such income (including the making of referrals). The report is especially valuable to the current controversy because it brings a deep understanding of law practices and fee arrangements. The report recommends that:

“With regard to lawyers, disclosure should specify whether the fee arrangements are based on hours worked or contingency, whether a referral fee is involved, and whether any premium or other add-ons are involved.”

The actions of the New York City Bar are to be applauded – having added their voices to the growing refrain for meaningful ethics reform in New York State, we hope legislators now will do the right thing. Given that yesterday’s gubernatorial veto has increased the likelihood that the legislature will revisit this issue, the legislature has another chance to subject disclosure requirements for lawyers to serious, public deliberation. The committee notes that it is willing to assist the legislature in working through the technicalities of the final bill – yet another reason for the legislature to host an open discussion about ethics reform.

** Full disclosure: Brennan Center attorneys Larry Norden, who sits on the State Affairs Committee of the City Bar, and Kelly Williams, were among the many attorneys who contributed to this City Bar report.

The Ethics Bill: What Now?

This evening, Governor Paterson vetoed the ethics bill as promised. We’re glad that the legislature will be forced to revisit this important issue. But even if the governor had signed the bill, the next steps that the legislature needs to take would have been essentially the same:

1. Fix mistakes in the bill. As we wrote last week, the legislature’s bill requires other ethics oversight bodies to refer certain violations to the new commission on lobbying, but it does not grant the lobbying commission any authority to actually investigate those referrals (or, for that matter, anything else that comes to its attention by any means other than a random audit of reports filed by lobbyists or their clients).The legislature should amend the bill to correct this error.

2. Consider the governor’s proposals. The ethics overhaul that the governor included with his budget bills includes several very good elements that the legislature’s bill does not, including:

1. Optional public campaign financing. While the legislature amended the election law to create an enforcement unit within the state board of elections which will investigate alleged violations of the election law, it opted not to substantively change the financing of elections.
2. Require all legislators, regardless of profession, to disclose all sources of outside income, including legal clients. The legislature’s bill exempts attorneys from disclosing outside sources of income, even though there is no legal or ethical justification for such a blanket exemption.
3. Establish independent oversight of the legislature. The legislature’s bill subjects the executive branch to independent oversight, but retains oversight jurisdiction over itself.
4. Prohibit legislators, except members of the legislature or candidates whose districts are located in whole or in part within forty miles of Albany, to participate in fundraising during the legislative session. No such provision exists in our current law, and the legislature’s bill did not disturb this.
5. Provide for the forfeiture of any member or retired member’s pension if that person is convicted of a felony or any conspiracy to commit a felony, or any criminal offense committed in another state or district. This means that Bruno and Seminerio would not be allowed to collect their pensions. Under our current law and the legislature’s bill they still can.
6. Expand the current anti-nepotism provision of the Public Officers Law to include having knowledge of any change of a relative’s employment status. In the Governor’s bill, it is no longer enough to not participate in any decision to hire, promote, discipline or discharge a relative for any compensated position; knowledge is key.

The legislature should seriously consider these reforms and subject them to public scrutiny, even if they are not sure that they could pass both houses. These reforms could be included in the budget vote, added to the current ethics bill as amendments, or introduced as separate legislation. Regardless, they merit serious public discussion at the very least.

3. Hold hearings on the bill. The legislature missed the boat on hearings the last time, and it led to errors in the bill and weaker reforms than public opinion would seem to support. The legislature should give experts an opportunity to weigh in on the bill, including any technical fixes or amendments, through public hearings. Any new legislation should be subject to the same level of scrutiny.

4. Debate, remake, and improve legislation. As we noted upon the ethics bill’s first passage, we were impressed by the substance of the debate surrounding the legislation. Legislators should put those sentiments and the knowledge they gain through public hearings on the legislation into action. Legislators should discuss ideas for improving the legislation as written and work to make it better.

This post was drafted with the invaluable assistance of Amanda Rolat.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

More Disclosure Please

Kelly Williams and I have an op-ed in today's Daily News arguing what should be pretty non-controversial at this point: that state legislators (even the lawyers!) should disclose the sources of their outside income.

About Those Committee Reforms

As my colleague Laura Seago noted last week, the only proposals for committee reform that we've seen coming from Senate Democrats have had to do with whether Republicans will be named to chair one of the dozens of committees and receive a few "lulus." Whatever happened to the promises to look into shrinking the ridiculously large number of committees, requiring members to show up to committee meetings in order to vote in those meetings, and developing a formal process for reading, amending and debating bills before rubber-stamping or blocking them? In other words, whatever happened to the promise to figure out a way to make committees work the way they do in nearly every other state legislative body in the United States, outside of New York? The Temporary Committee on Rules and Administration Reform had indicated they would try to come up with some recommendations for the full Senate by December. It's December 21.

Lulus distributed more equitably, but still not earned

Yesterday, the Daily News reported that the Senate Democrats are in “high level discussions” to give committee chairmanships to Republican members in hopes of improving relations between the two parties in the narrowly-divided chamber. Likely reflecting the nature of the talks themselves, the article emphasized the $12,500 lulus that GOP committee chairs will receive.

While bipartisan leadership is great, we certainly hope that this won’t be the only reform to the committee process that the Senate contemplates this month. When the chamber changed its rules in the wake of the coup last July, it also passed a resolution promising to return to the issue of committee reforms. Last month, Senate staff informed us that we could expect an outline of these reforms in December. In response to this news, we offered suggestions including reducing the number of committees, requiring committee reports, establishing a mark-up process, and institutionalizing conference committees to reconcile similar bills passed in both chambers. The promise to consider such changes has yet to be fulfilled.

Committee members of both parties need to earn their lulus by presiding over hearings, markups, and active discussion devoted to debating and improving legislation. If the Senate doesn’t go further to reform its committees, this new era of bipartisanship will mean little more than compensating members on both sides of the aisle for doing very little.

3 Men in a Cell?

In 2005, we noted that over the previous decade, a New York State legislator was just as likely to die in office as lose in a general election. For 2009, on the heels of the Bruno conviction, we have a new statistic: since 2000, legislators were more likely to resign while under ethics investigation, or after pleading guilty to or being convicted of a crime, than they were to lose in a general election.

Closing the Bruno Gap

Yesterday, former Senate Majority Leader Joe Bruno was convicted of two felony charges of mail fraud under the federal honest services law. He is all but certain to appeal. If he wins on appeal, it will not be because Bruno did not accept millions of dollars in consulting fees from individuals with legislative interests without disclosing the payments (he admits that he did), but rather because the federal statute under which he was charged is currently under review.

Some have argued that the federal prosecution of Bruno underscores the failures of state ethics commissions to do their jobs. We're not sure that's fair. The sad fact is, it is not clear that there is any state statute under which to charge state politicians for the kinds of crimes Bruno was alleged (and now convicted) of committing. New York’s ethics laws, such as they are, don’t restrict outside earnings or require legislators to disclose the sources of their income. Those who collect outside income that might raise questions about conflicts of interest – including Shelly Silver, according to a witness at Bruno’s trial – can simply refuse to disclose that information. Even under the ethics bill nearly passed this fall, there would not necessarily be a case for convicting Bruno.

The question, then, shouldn’t be about the problem with Bruno’s actions – most would agree that it is undesirable for a legislative leader to accept over $3 million from individuals who wish to influence policy outcomes – but the problem with New York’s ethics laws. We need a new push for ethics reform that includes mandatory disclosure of all outside income (including from legal work, as is required in Washington state), pay to play restrictions (which would have explicitly banned Bruno’s activities), and a truly independent legislative ethics commission to oversee compliance with these laws.

We need these reforms soon, before the next Joe Bruno – and odds are good that there will be one – walks.

Albany Revealed

I'd like to echo yesterday's blog post from my colleague, Laura Seago. Disappointing as yesterday's gay marriage vote may have been, it represents a historic and extremely important moment in Albany separate and apart from substantive issue of marriage equality: Senators were forced to take a public, binding vote on an issue many would have preferred to avoid.

What's a bit surprising to me is how many people in Albany who should have known better were "shocked, shocked" to learn that the private promises of support they received did not translate into actual votes.

There's a long tradition in Albany of avoiding votes on controversial issues and bills, either because the bills are popular, but opposed by powerful interests with deep pockets, or because an up or down vote would inevitably tick off one group of consituents or another. This can be a good deal for legislators. They can privately or publicly support a measure that gets them the good will of particular constituents without having to fear the loss of financial or electoral support that would come with an actual vote. But the result is that, all too often, the legislature avoids tough issues that must be addressed for the State's long term health. The public has no one to blame (unless they happen to live in the district of the Assembly Speaker or Senate Majority Leader).

If a democratic system is going to thrive, legislators will sometimes have to take difficult votes -- it is a disservice to New Yorkers to avoid public debate and votes merely because taking a stand could cost some legislators their jobs. That's the point of democracy: take a difficult stand and then defend it to your consituents. Either a majority will accept your explanation or not. If not, new legislators will be elected to take up the will of the people.

Lo and behold, the day after this controversial vote on gay marriage, people know where their state Senators really stand. There are protests, and talk of targeting members for their votes. Come November, voters will have an opportunity to judge their legislators on this topic in a way that they could not previously.

Wouldn't it be great for voters to have more points of reference? Actual votes on bills on controversial but important issues like campaign finance reform, congestion pricing, property tax reform, etc., etc.?

We can dream, and the new Senate rules may provide a real opportunity for this next year (in one chamber, anyway).

Victory in Defeat?

Today, in an incredibly rare move, the Senate voted down a bill – this one to legalize same-sex marriage.

Disappointing though the result might be, the bill’s failure symbolized a departure from business as usual in the Senate, and gave advocates for marriage equality a critical tool in pushing similar legislation next year.

During debate on the bill, Sen. Diaz, one of the eight democrats who voted against the legislation, called Majority Leader Malcolm Smith “treasonous” for not keeping his word with respect to a deal reached last January that included Smith’s promise to keep the marriage bill from coming to the floor for a vote in exchange for Diaz’s participation in the Democratic caucus. Normally, a bill only reaches the floor with the approval of chamber leadership and a guarantee of passage.

But today, for the first time, the Senate created a public record as to where its members stand on the issue of marriage. While some Senators were outspoken in their support for or opposition to the bill, it was never 100% clear until today who the five or six democratic holdouts were, and the fact that the bill lost by the margin it did was a surprise to most who have been following this issue closely.

Openness and accountability are critically important to representative government. In the past, leadership has shielded members from having to take votes on controversial issues and the result has been that voters haven't known who to blame for a bill's failure to pass. That's bad for New York, because it keeps the legislature from tackling difficult issues, and it's bad for New Yorkers, because they lose the ability to hold their members accountable.

One thing we are pretty sure of is that many, many New Yorkers will know how their Senators voted on gay marriage when they go to the polls next November. That's the kind of significant information they haven't had in the past. The majority of New Yorkers who support same-sex marriage and those who oppose it will now have a better opportunity to make sure that their views are reflected in the votes of their elected representatives.

UPDATE: In a previous version of this post, we indicated that the Senate has voted down a bill on only one other occasion in recent memory. We were incorrect. During two of the Senate's post-coup all-nighters, a total of three bills were voted down on the floor. An additional two bills were tabled due to a lack of support on the floor, again after the coup. We stand corrected.