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Let Campaign Finance Board Do Its Job

Brooklyn attorney and special prosecutor, Roger Adler, serves as an example of how the New York City Campaign Finance Board is best equipped to carry out campaign investigations.

Published: December 11, 2014

Cross-posted on the New York Law Journal

I have long felt that special prosec­utors, while justi­fied in excep­tional cases, often lead to public policy error. All prosec­utors are inves­ted with enorm­ous power, and so we demand and expect them to use caution and judi­cious­ness. And in theory, all prosec­utors face some kind of check on their power, either from voters elect­ing a district attor­ney or state attor­ney general, or a pres­id­ent who appoints U.S. attor­neys.

But special prosec­utors face no such check. Because they have no other job, they are not compelled to consider the import­ance of their invest­ig­a­tion compared to other factor­s—and they often think they have failed if they do not bring an indict­ment. At the federal level, the inher­ent prob­lem with special prosec­utors has been recog­nized, and the federal law which created an Office of Inde­pend­ent Coun­sel (special coun­sel appoin­ted to invest­ig­ate, among others, high level federal officers) has been allowed to lapse.

Alas, that is not the case at the state level. One special prosec­utor, in partic­u­lar, may unin­ten­tion­ally be provid­ing us with more evid­ence for why such appoint­ments are a bad idea.

Brook­lyn attor­ney Roger Adler was appoin­ted by the Office of Court Admin­is­tra­tion in 2012 to invest­ig­ate a 2009 City Coun­cil race on Staten Island. The targets of the invest­ig­a­tion are Coun­cil­wo­man Debi Rose and the Work­ing Famil­ies Party, which played a substan­tial role in her elec­tion.

This appoint­ment is pecu­liar for a number of reas­ons. First, Staten Island District Attor­ney Daniel Donovan, who recused himself, filed his reas­ons under seal, which is in and of itself a bad way to start. If the elec­ted district attor­ney wants to recuse himself, common sense suggests he should tell the public why that is so.

Second, reas­on­able ques­tions have been raised as to Adler’s appro­pri­ate­ness as a prosec­utor. When he served as a special prosec­utor in a differ­ent elec­tion law case two decades ago, he was rebuked by a judge for abuse of the grand jury process. The New York Times has repor­ted that he is a “frequent oppon­ent of the Work­ing Famil­ies Party.” Regard­less of whether his past oppos­i­tion to the party has been legit­im­ate, appear­ances matter, espe­cially in a polit­ic­ally sens­it­ive case such as this one.

But the third reason is the most import­ant—the invest­ig­a­tion itself concerns alleg­a­tions that should be fully adju­dic­ated by the Campaign Finance Board, which it has been unable to do while Adler’s invest­ig­a­tion drags on. The board has already examined eight similar cases and, with one excep­tion, found no viol­a­tions related to the Work­ing Famil­ies Party or Data and Field Services, its former for-profit arm. The one excep­tion involved a candid­ate who was fined for provid­ing an inad­equate response to follow-up ques­tions from the board; it did not involve a find­ing that he or the Work­ing Famil­ies Party had substant­ively viol­ated the city’s campaign finance law.

These facts them­selves should mean a lot. The New York City Campaign Finance Board is widely considered the nation’s gold stand­ard in terms of admin­is­ter­ing a complex and well-regarded system of public campaign finance. I should know: I served as the board’s chair between 2003 and 2008. There are dozens of profes­sion­als with deep exper­i­ence in the city’s campaign finance system who work at the agency, and they have audited hundreds upon hundreds of campaign commit­tees. In doing so, they often find viol­a­tions of the regu­la­tions, and candid­ates are required to comply, some­times paying substan­tial fines. Of the 204 audits of coun­cil candid­ates in 2009, fines were levied on 74 candid­ates.

The New York City public finan­cing system is a model of how to improve our demo­cracy. The More­land Commis­sion called on Gov. Andrew Cuomo to estab­lish a similar system at the state level. One can hope he succeeds, but whether or not he does, we need the city system to continue as a beacon for a more inclus­ive, small-donor oriented campaign finance system. Predict­able admin­is­tra­tion of regu­la­tions is needed for demo­cracy to func­tion. To launch a crim­inal invest­ig­a­tion of the ordin­ary campaign activ­it­ies of one city coun­cil race when there is an agency that is fully suited to the job is not only unne­ces­sary but a seri­ously bad preced­ent.

I do not know the ins and outs of this case. I only know what I see in the papers. But from my vant­age point, the special prosec­utor should stand down and allow the Campaign Finance Board to proceed with its audit.

If there are viol­a­tions to be found, one can have confid­ence that the Campaign Finance Board will find them and levy the appro­pri­ate penalty. And the state should think twice, or even three times, before appoint­ing special prosec­utors in the future. It does not enhance our system of justice.