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.
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 previousstatements 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.
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. Read the letter from all of these groups to the New York State Board of Elections. 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.
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:
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.
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:
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.
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.
Establish independent oversight of the legislature. The legislature’s bill subjects the executive branch to independent oversight, but retains oversight jurisdiction over itself.
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.
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.
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.
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.
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.
Campaign Finance Reform expert and Brennan Center staff Monica Youn was joined by Professor Zephyr Teachout from Fordham Law to discuss the Citizens United decision and what it means going forward. Bill Moyers hosted the discussion, which took place on January 28, 2010, and was broadcast the next day. See related materials, and the rest of the broadcast, at the The Journal's site.
When the five conservatives on the Supreme Court decided last week that money is speech and corporations have the same rights to spend as much of it buying elections as you do, you could hear the champagne corks popping over at Goldman Sachs, JPMorgan Chase, and Exxon Mobil.
But when the late night talk shows heard the news, they didn't break out the bubbly; they broke out in laughter. At THE DAILY SHOW WITH JON STEWART, correspondent John Oliver made fun of the very notion of corporations as an oppressed minority.
JOHN OLIVER: What a day! With this historic ruling, the last bastion of discrimination in this country has come toppling down. For too long, Jon, corporations have suffered under the yoke of laws, stripped of the basic freedom and dignity guaranteed by our founders [...] For the first time in history, corporations can walk with heads held high, having left their mark on American democracy.
BILL MOYERS: But seriously, folks, is this the end of democracy as we know it? Can it get any worse? My first guests say this is no laughing matter.
Monica Youn directs the money in politics project at New York University's Brennan Center for Justice. She's litigated campaign finance and election law issues in federal courts throughout the country.
Zephyr Teachout, is a faculty member at Fordham University's School of Law, who at this moment is also a Visiting Assistant Professor at Harvard University's Kennedy School. During the presidential campaign of Howard Dean in 2004, she was director of his online organizing, which as you know revolutionized political networking and fundraising.
Welcome to you both.
ZEPHYR TEACHOUT: Thank you.
MONICA YOUN: Thank you.
BILL MOYERS: Now, comedians can be funny and journalists can be facetious, but in very plain language, who won the Supreme Court decision?
MONICA YOUN: Well, corporations clearly won this decision. I mean, essentially, what the court does is it awards monopoly power over the First Amendment to corporations. You can think about the last couple of elections as, you know, the slow rise of the grassroots. And as a result, the political parties, for the first time, had an incentive to start reaching out to small donors, to start cultivating grassroots organizing networks. And you saw what happened in the last election. Now, what the Supreme Court has done here is really a power play. It takes power away from the grassroots, and it puts it squarely back in the hands of corporate special interests.
It threatens to make these grassroots networks irrelevant. To say, you know, it's no longer going to be worthwhile for, you know, parties to look for fundraising opportunities, $20, $100, even $2,400 at a time, if they can just have multimillion dollar support directly from corporate treasuries.
Liz Benjamin reports today that the Ethics Bill is still sitting on the Governor’s desk. If it’s still there on Monday, 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.
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.
“I’m just dumbfounded,” stammered Justice Ann Walsh Bradley of the Supreme Court of Wisconsin.This was Thursday, January 21, the same day the U.S. Supreme Court issued its long-anticipated ruling in Citizens United, which easily eclipsed the unfolding drama in Wisconsin.Justice Bradley’s words were in response to the state court’s anguished position on the recusal of high court judges, a position that’s brought only disappointment since October 2009.
Several petitions on recusal came before the Wisconsin high court over the past year, each proposing different rules for how and when state Supreme Court justices should be disqualified from hearing cases involving conflicts of interest.In a controversial 4-3 decision in October, the court rejected two promising petitions, and instead voted to grant two petitions that flouted the spirit – if not the very letter – of the U.S. Supreme Court’s June 2009 ruling in Caperton v. Massey.Caperton held that the constitution’s due process clause prohibits a judge from hearing the case of a party who spent substantial funds to place the judge on the bench.Under the rules adopted by the Wisconsin justices in October, though, no amount of campaign spending – whether in the form of direct contributions or independent expenditures – could be the lone basis for a judge’s recusal.
The Supreme Court of Wisconsin voted to adopt the misguided rules in October by a razor-thin 4-3 vote.The court’s two newest members – Annette Ziegler and Michael Gableman, who formed half of the four-justice majority in favor of the rules – are the recent beneficiaries of exorbitant campaign spending by the very group that wrote one of the petitions adopted by the court, Wisconsin Manufacturers and Commerce (WMC).(Ziegler and Gableman each bear scars from recent dust-ups of their own, Ziegler for repeatedly failing to recuse from cases involving financial conflicts and Gableman for campaign ads he ran in 2008 that resulted in ethics charges.)Then, in December, the court had to withdraw its October vote when it became clear that there were details that still needed reconciling between the two petitions the majority had adopted verbatim.
The bottom fell out of the ongoing recusal controversy when, last Thursday, the court voted once more to adopt the ”no recusal” petitions (this time with only minor tweaks from Justice David Prosser) – and to adopt them without extended debate.There was an air of defensiveness about Thursday’s administrative hearing.As Justice Prosser said, just as discussion was heating up on his proposed revisions, “I don’t think there needs to be any more commentary.” (Part 4, 1:00:27)There was something uncomfortably – needlessly – rushed about the vote, as though the majority were afraid its advantage might evaporate at the onset of scrutiny.Justice Bradley, meanwhile, wondered aloud what it was exactly that Prosser had added to these two petitions to make them suddenly palatable after December’s embarrassing withdrawal. (Part 4, 55:16)Prosser had made minor changes to the text of the proposed rules themselves, but most of his changes weren’t to the rules themselves but to the commentary.He offered additions designed to justify the new rules, both by inserting historical flourishes – “An elective judiciary was selected and has been part of the Wisconsin democratic tradition for more than 160 years” – and by simply re-phrasing the petitions’ original language. Chief Justice Shirley Abrahamson gently observed that what the justices had before them, in the form of Prosser’s proposed revisions to the petitions, was “a good first draft.” (Part 4, 1:00:08)
The majority’s hasty push to adopt the petitions without further discussion was odder still given the explicit calls for a more meaningful, thorough-going investigation of the proposals on the table. Justice N. Patrick Crooks, one of the three justices to vote against these petitions in October, judiciously called for a hold.Adopting the petitions was ill-advised, he argued, without further study by legal experts – a position with broad support.(Justice Crooks cited as grounds to proceed with caution the Brennan Center’s recommendation of a study committee, a suggestion that the Wisconsin Bar Association also made in October.)Having suggested many times that a commission of experts study different proposals for recusal language, Crooks argued that the state high court had still not heard – or solicited – the input of the state’s lower court judges, input that should certainly be a part of the process too.One was struck by the reasonableness and modesty of Crook’s suggestion, which stood in stark contrast to the majority’s dismissiveness.
Ever skittish, Justice Prosser has responded to this suggestion by saying that a committee of legal experts is “designed to harass certain members of the court.”His defensiveness speaks volumes.Prosser is up for re-election in 2011 – which may partly explain his anxieties.
Also striking is the disingenuousness of the majority here, as it claims to be protecting Wisconsin voters’ right to elect their judiciary.Justice Gableman, for example, stated Thursday that the Brennan Center’s support for recusal reform is part of a secret agenda to do away with judicial elections all together – even though we clearly and repeatedly testified in October (see Part 2) that this was simply false.(See also this more general clarification.) Dogged by questions about her October vote with the majority, Justice Patience Roggensack, too, framed her stance as a defense of Wisconsin citizen’s right to vote, writing an op-ed in December claiming that she acted in defense of the First Amendment.The Capitol Times, among other sources, duly called her out for her bait and switch: no one is talking about doing away with the election of judges.
Quite the contrary.Reforming recusal standards is designed to make the administration of these elections more tenable, to ensure that First Amendment concerns of voters are balanced with their due process rights to a fair trial.
Over the last decade, more money than ever has poured into judicial elections.According to the New York Times, “between 2000 and 2009, spending on state supreme court races across 22 states” with competitive elections “was about $207 million, up from $86 million between 1990 and 2000.”As Caperton showed us, the public is bound to question the independence of the judiciary if judges are hearing cases that involve litigants who have put massive amounts of money toward their election efforts.According to a USA Today poll, more than 90% of those asked said “judges should be removed from a case if it involves an individual or group that contributed to the judge’s election campaign.”Recusal standards that take into account the size and timing of such spending are merely a means to formalize this obviously logical concern.
Skeptics of reform are quick to point out the difference between campaign contributions and independent expenditures, which is immaterial.The Supreme Court found that West Virginia Supreme Court Justice Brent Benjamin needed to recuse himself from a case when an active litigant – C.E.O. of Massey Coal – put $3 million dollars toward Benjamin’s election effort, $2.5 million of which came in the form of independent expenditures.What’s more, as we survey the likely impact of the Supreme Court’s disheartening decision in Citizens United, the issue of independent expenditures (particularly those coming from corporations) is likely to explode in the context of judicial elections.It is therefore more critical than ever that some mechanism is in place to safeguard the independence of the judiciary.
The timing of the Supreme Court’s decision in Citizens United makes the Wisconsin Supreme Court’s recent vote all the more egregious. The judiciary should be above the suspicion of influence peddling.And without recusal standards that are responsive to the flood of campaign money propping up state high court judgeships, the public in Wisconsin has virtually no bulwark standing between its courts and perceptions that justice can be bought.As Justice Stevens said in his Citizens Uniteddissent, trying to explain the majority’s sometimes confusing language in Caperton:
The reason the Court so thoroughly conflated expenditures and contributions, one assumes, is that it realized that some expenditures may be functionally equivalent to contributions in the way they influence the outcome of a race, the way they are interpreted by the candidates and the public, and the way they taint the decisions that the officeholder thereafter takes.
The refusal of four Wisconsin justices to acknowledge these “influences” and the “way they taint the decisions” that judges like themselves may eventually take is a serious blow to the integrity of our judiciary.
0 comments | Permalink