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.

Is the Citizen Legislature to Blame? Maybe for Boredom.

In a story in today’s Times, embattled former Senate Majority Leader Joe Bruno is quoted as attributing his use of a state secretary for private business and collecting consulting fees from myriad entities with state contracts to the fact that New York has a part-time legislature.

With this in mind, we decided to take a look at what the National Conference of State Legislatures has to say about part-time versus full-time legislatures. NCSL stresses that legislatures can’t be divided into two black and white categories, but interestingly enough, NCSL puts New York in a category with California, Michigan, and Pennsylvania – states that have longer sessions and larger districts, and where legislators have larger staffs and “are paid enough to make a living without requiring outside income.” In fact, according to NCSL, legislators in New York have the third-highest salaries in the nation. (Granted, $79,500 a year may make it tough to live in and represent a district on the Upper East Side, but the median household income in Saratoga and Rensselear Counties, which Bruno represented, is less than $50,000.)

Aside from salaries and session length, though, New York may be less like California and more like the states that NCSL identifies as requiring less time of legislators and compensating them with quite low salaries that usually must be supplemented with outside income. As we’ve written many times before, legislators in New York spend shockingly little time studying issues through the committee process and improving legislation accordingly. So maybe when Bruno blamed New York’s citizen legislature system for his outside dealings, he was really saying that he got into trouble because he had too much time on his hands.

Fortunately, we know how to fix that problem.

Senators, Advocates, Lobbyists: New Rules Mean New Opportunities Next Year

Of course, the legislature still isn't finished with the serious work it must get done THIS year.

But for advocates and Senators, it may be time to start thinking a little bit about next year, and here's why: the impact of the Senate's new rules could make a huge difference in the operations of the Senate and what gets considered.

There are several new ways to get hearings on bills, to force members to publicly take positions, and to force bills to the floor for debate and a vote. As my colleague Laura Seago has written, proponents of the gay marriage bill might want to use the new rules if they can't get leadership's cooperation. But there are a host of other groups that may want to use the new rules to get their issues on the floor of the senate -- tenants rights groups, property tax reform groups and environmental groups, to name a few.

We've posted a "road map" of the new rules and how they can be used here. It was drafted with Maria Cilenti , Director of Legislative Affairs of the New York City Bar. We hope that advocates (and Senators) will use it. The new rules will only make the legislature more transparent and accountable if rank-and-file members take advantage of them.

How to Fix Committees

As we've written before, the Senate has one major hurdle to clear before it largely fulfills its promise of making the chamber more deliberative, open, and accountable. Below is a letter that the Brennan Center sent the Temporary Committee on Rules and Administration Reform and other Senate leaders yesterday outlining the specific reforms that the chamber must make.

November 11, 2009

Dear Senators Valesky and Bonacic:

We write regarding the work of the Temporary Committee on Rules Reform. First, we congratulate the Senate on making significant strides in reforming its operating rules to distribute member resources more equitably, allow members to move legislation to the floor over the wishes of the majority leader, impose term limits on chamber leadership, and increase transparency for the actions of individual members, committees and the full chamber. All of these are significant reforms that provide the Senate with the opportunity to become a more accessible, accountable and efficient chamber. And they place the Senate far ahead of the Assembly in creating a more democratic body, where rank-and-file members will have a greater opportunity to represent their constituents and ensure that the concerns of those constituents get a public airing in the full chamber.

Our greatest reservation about the Senate’s rules changes thus far has been the failure to significantly alter the committee process. Based on our studies in this area, as well as our work in other state legislatures and Congress, we believe that there is no area in the New York state legislative process in greater need of reform than the committee process. We understand from communications with Senators and legislative staff that the Temporary Committee plans to take up this important topic in the coming weeks.

As you are aware, Senators currently sit on so many committees that it is difficult for many these Senators to devote enough time to any of them. There is still no process for reading bills in committee or even for requiring committee members to show up to meetings. Committee reports are almost always perfunctory and lack any description of committees’ work on bills (in addition to making it more difficult for other legislative members and members of the public really understand these bills, a lack of real committee reports -- unique to New York -- makes it exceptionally difficult for the courts to determine legislative intent in cases where the law is unclear). And while the new rules allow members to petition for hearings, it does nothing to require hearings on major legislation.

We strongly urge you to recommend the following changes to the committee process:

1. Reducing the number of legislative committees on which individual Senators may serve to no more than three to four, as is typical in other state legislatures (including such large states as California, Florida, Illinois, Michigan, Ohio and Pennsylvania);
2. Requiring committee reports issued with any bill voted out of committee to set forth the purpose of the bill, the proposed changes to existing law, section-by-section analysis, the bill’s procedural history, committee or subcommittee votes, and any individual members’ comments on the bill;
3. Requiring a process for reading, debating and amending any bill before it receives a vote from the committee (absent a vote by the committee to forego that process for any particular bill);[1]
4. Providing each committee with explicit control over its own budget and the hiring and firing of all committee staff; and
5. Institutionalizing conference committees, so that when bills addressing the same subject have been passed by both chambers, a conference committee will be convened at the request of the prime sponsor from each chamber or the Speaker and Majority Leader.

If the Senate passes these changes, it will largely fulfill its promise to overhaul its operating rules to promote representation, deliberation, accessibility, accountability and efficiency. Given the challenges New York currently faces, we believe that such changes could not come at a better time.

Sincerely,

Lawrence Norden
Senior Counsel, Democracy Program

cc: Sen. Pedro Espada
Sen. Joseph Griffo
Sen. Jeffrey Klein
Sen. Kevin Parker
Sen. John Sampson
Sen. José Serrano
Sen. Malcolm Smith
Sen. Daniel Squadron
Sen. Andrea Stewart-Cousins
Sen. George Winner
Shelly Mayer, Counsel to the Majority
Andrew Stengel, Senior Policy Adviser for Government Reform

---

[1] This process could be similar to the process used by the Senate Committee on Cities on May 19, 2009.

Breaking One Set of Rules to Enforce Another?

Liz Benjamin is reporting that the Assembly’s ethics committee held a closed-door session this morning, the subject of which committee members have kept tightly under wraps. While it’s good news that the committee – which, as we noted in our 2008 report, sometimes goes years without meeting – is doing its job, the opacity of the process may be cause for concern.

According to the New York State Open Meetings Law, a committee can only hold a closed-door ‘executive session’ after taking a vote “in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered” for the following reasons:

a. matters which will imperil the public safety if disclosed;

b. any matter which may disclose the identity of a law enforcement agent or informer;

c. information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed;

d. discussions regarding proposed, pending or current litigation;

e. collective negotiations pursuant to article fourteen of the civil service law;

f. the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation;

g. the preparation, grading or administration of examinations; and

h. the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof.

It is certainly plausible that options c, d, or f are relevant to official Ethics Committee business, but the committee's failure to disclose the subject of the meeting is suspect. The law allowing executive sessions is designed to protect the public and afford due process to those accused of violating the law, not to obscure the business of the legislature from public view.

"Greater transparency" without information is not greater transparency

To some fanfare, the Senate yesterday unveiled its new open legislation portal. The new site provides some information on bills (i.e., bill text, sponsor memo, status, bill summary, and voting records) that was not previously available on-line in a single place (though, as far as I can tell, it was all available somewhere). The new site is certainly easier to use than the old site.

Unfortunately, the new site still doesn't provide New Yorkers with the kind of critical information residents of other states can get to assess legislators and legislation: full fiscal notes, committee votes, floor debate transcripts, previous versions of amended bills, committee reports, etc.

It's wonderful to have a new database that makes searching easier. It would be more wonderful if the Senate would post information that would the database useful to people who want to fully understand legislation and the actions of their Senators.

We hope that's coming soon.

A Perfect Opportunity to Take New Senate Rules for a Spin

With yesterday’s votes in Washington and Maine concerning the rights of same-sex couples, New Yorkers may be wondering about the status of our own state’s proposal to extend marriage rights to gay couples.

On Tuesday, New York Magazine blog Daily Intel ran a story stating that Senate leadership appears unlikely to bring the marriage bill that has been languishing in the chamber for months to the floor for a vote.

This may be no surprise to those who were following this story in the spring. Then, as now, bill sponsor Tom Duane and senate leadership have a fairly good idea who is in favor of and who is against the bill, but voters do not. The Daily Intel post reports that there are 25 or 26 Democratic votes and three or four Republican votes in favor of the bill, but nobody’s naming names. That means that voters who want their elected representatives to vote a certain way on the bill have no way of knowing if they need to get in touch with their senators.

One of the rules reforms passed after the end of the Senate coup in July would solve both the problem of leadership’s reluctance to move the bill to the floor and anonymity with respect to senators’ positions on the issue. It’s called a petition for chamber consideration, and it allows the bill sponsor to request that a bill receive a timely floor vote. If three fifths of the chamber – or 37 senators – sign the petition, the bill is considered on the first legislative day after four days have passed. By signing the petition – a public document under New York’s open records law – senators can go on the record with their support of the bill and force the legislation to the floor without the blessing of chamber leadership.

The new Senate rules – perhaps the only redeeming thing about the coup that deadlocked the chamber for a month this summer – included a lot of good changes, but the real test is yet to come: members of the Senate actually have to take advantage of their new rights.

After decades of secrecy and leadership stranglehold over the legislative process, rank and file members finally have an opportunity to speak for themselves. But will they take it?

"This way you do business . . . is against the law."

That is the essence of the federal charges against former Senator Majority Leader Joe Bruno, and, in a way, all of Albany. Or so says an unnamed political operative in a New York Times article by Nicholas Confessore entitled "Bruno's trial seen as a hearing on Albany."

I made much the same point in an AP article authored by Michael Virtanen. Regardless of what the eventual outcome of the Bruno trial, the trial itself is bound to give us weeks of headlines that highlight the pay-to-play culture that so many in Albany take for granted. We can only hope that this will shame the legislature enough to force more reforms, and continue to chip away at the stranglehold party leadership and certain vested interests have over the state.