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I ran across Max Ehrenfreund's interview with New York gubernatorial candidate, Zephyr Teachout in the Washington Post. Teachout is attempting to mount a Democratic primary challenge to New York Gov. Andrew Cuomo in hopes of a Brat/Cantor-style upset. Good, and good luck with that. Cuomo needs a reminder as to what the party he belongs to is supposed to represent and Teachout needs 15,000 signatures by July 10th to get in the primary. Funding-wise, she's not going to get close to Cuomo, who apparently has already collected more than enough to finance his campaign0.

Early in the Washington Post interview, Teachout talks about a major issue she has with the Supreme Court's opinion in the Citizen's United decision:

Ehrenfreund: I want to start with this sentence from Kennedy’s opinion in Citizens United: “Independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” [...] What do you think about that sentence? Did Kennedy get it wrong, and if so, why?

Teachout: It shows a complete misunderstanding of what corruption means, and what it has always meant in American law and culture. I’ve just finished a five-year-long study of the legal meaning of corruption, but you don’t need to actually study 19th-century law to understand that corruption has always meant when somebody serves their own private interest when they should be serving the public interest.

[...]

When people say that certain lobbyists are corrupt, they don’t mean, “That lobbyist has violated federal bribery law!” They think that that lobbyist is basically being selfish in the public sphere, and I’d say even excessively selfish in the public sphere. Everybody’s always going to have some self-interest. When it passes a certain point, that’s when it become corruption.

Read the whole interview; Teachout makes a number of solid points, but rarely does the media take enough time for a deeper dive into them...this one in particular:
In both Citizens United and the more recent money-in-politics case, McCutcheon v. FEC, they’ve basically decided what is and what is not corrupt without actually taking evidence, without talking to politicians, without a full exploration of all the different ways in which money can really insidiously affect decision-making.
Sure, out-and-out bribery of government official is clearly corruption, but the problem with the Court's decision is that they have defined lawful actions resulting in corrupt outcomes as -from a legal standpoint - being no different than lawful-and-ethical actions1. Doing this is not only an abdication of judicial responsibility, as it's a judge's job to interpret how law applies to the real world, but it creates a catch-22 situation. Now the onus is on politicians to be responsible for identifying and enforcing ethical behavior in government...and who are also the same people being corrupted by the money needed to get elected and the self-interest needed to stay in office. Politicians have a hard time just getting to the "fuller exploration" part, much less doing anything about what is discovered...

Case in point; what has happened (and is happening) with New York state's recent efforts to curb its own government's ethics problems.

(Continued below the fold...and pack a lunch if you do, as it's a long ride. Apologies.)

Acknowledging an understandable lack of public trust in the government, New York Gov. Andrew Cuomo's 2013 "State of the State" speech addressed the need for such things as implementing public campaign financing statewide2 and better disclosure laws. After the failure of the NY state legislature to pass anti-corruption laws intended to curb corruption on the part of the state legislature3, Cuomo created the Moreland Commission to Investigate Public Corruption in July of the same year. The Moreland Commission was charged to investigate the effectiveness of criminal statutes related to corruption and examine corrupt practices in relation to campaign financing, lobbyist activities, and election law. The commission's officials had subpoena power and could require witnesses to testify under oath. A good and serious and noble initiative. Or at least that's how it was presented to the public. A more cynical person would have said that was all a way for Cuomo to appear to be a reform-minded executive as New York was heading into an election cycle.

Most of what happened after the Moreland Commission was created seems to validate that cynicism regarding how seriously Gov. Cuomo and New York legislators were approaching the entire idea of ethics reform and limiting corruption.

Despite some mildly suspicious alterations to the list of people testifying and the surprisingly small venue it was held in, the commission's first meeting in September seemed to go well enough:

Commission members repeatedly asked where they should specifically look for corruption and how members of good government groups thought change should be enacted in the state’s campaign finance system. Some legislative staffers moaned as members of good government groups repeated familiar mantras about New York State’s broken campaign finance system.

Bill Mahoney of the New York Public Interest Research Group reminded the audience of how the BOE’s lax rules have allowed legislators to spend campaign cash on pool covers, cars and their legal defense.

“The Legislature has shown an unwillingness to act,” Mahoney said, while offering a detailed report on how the commission itself could move to address some of the state’s largest problems. But he cautioned that the commission should provide a comprehensive legislative package along with any individual action they take.

The commission's second meeting was held soon after because lawmakers began pushing back against being possible targets of the group's investigations4:
The commission’s second hearing came after attorneys for the legislative majorities refused the commission’s request for more information on state lawmakers’ outside income. Specifically, the commission wanted more information on the outside income of those who make more than $20,000 in private business and lists of their clients. Legislators perceived the request as an overreach by a commission created by the executive branch.
But it wasn't only the state legislature that was having issues with the commission; it was allegedly making things difficult for Gov. Cuomo:
The commission’s relationship with the governor’s office has also been freighted. It issued a flurry of subpoenas at the start, but then was slowed by Mr. Cuomo’s office in several instances, according to people familiar with the situation who insisted on anonymity because they feared retribution by the governor.

In one such instance, when the commission began to investigate how a handful of high-end residential developers in New York City won tax breaks from Albany, its staff drafted, and its three co-chairmen approved, a subpoena of the Real Estate Board of New York. But Mr. Cuomo’s office persuaded the commission not to subpoena the board, whose leaders have given generously to Mr. Cuomo’s campaign, and which supported a business coalition, the Committee to Save New York, that ran extensive television advertising promoting his legislative agenda.

Fearing a defection on the part of campaign contributors (and possibly a recommendation from the commission that would close a loophole that allows for unlimited amounts of money to be donated to politicians like Cuomo5) it's understandable - though ethically suspect - why rumors began surfacing as far back as October 2013 that Cuomo wanted to make the commission go away:
One option said to be under discussion is passing a package of ethics measures that could allow the governor, legislative leaders and the commission to say they had made headway in cleaning up Albany, without a prolonged investigation during next year’s legislative session.
In early December, the Moreland Commission released its preliminary report6:
“Our investigation thus far reveals a pay-to-play political culture driven by large checks, anemic enforcement of the weak laws we have on the books, and loopholes and workarounds that make those laws weaker still,” says the report, which was released today at 6:05 p.m. by the Cuomo-appointed Moreland Commission to Investigate Public Corruption. “What we can describe, though, is deplorable conduct, some of it perfectly legal yet profoundly wrong; some of it potentially illegal – and, indeed, this Commission will make appropriate criminal referrals at such time as it deems appropriate. New Yorkers already are too aware, from the laundry list of indicted public officials, that our State has been hit hard by corruption.”
(.pdf of the report is here)

The recommendations were considered by some to be controversial; criticism that public financing's power to even the playing field for candidates "in a post-Citizens United" world was seen as insufficient and the usual hyperventilation over where the tax revenue to support it would come from. The legislature didn't like the commission's investigative focus being put on them almost exclusively and complained that the report left out examinations of Cuomo's own fundraising. Which it did7.

Still, the preliminary report contained a number of good ideas on which to base legislation. The problem would end up being the ability of Cuomo and the state legislatures to pass these reforms into law. In January 2014, Cuomo introduced a campaign finance reform bill as part of his budget request for the state, but was "dismissive about its chances early in private meetings with leaders." On March 29th, Cuomo was promising to end the Moreland Commission if his ethics legislation was approved.

Two days later, the Moreland Commission to Investigate Public Corruption was shut down. In exchange for doing so, a compromise bill was created that addressed some of the commission's recommendations but weakened or completely ignored others. Public campaign financing was limited to the race for state comptroller with the explanation that it was to be a 'pilot' program before going statewide and loopholes that allowed for nearly-unlimited campaign contributions were left untouched...and those were just two of the more glaring issues.

Reform advocates and the labor-backed Working Families Party on Cuomo's left were highly dissatisfied with the discontinuation of commission and the compromise bill itself. The Governor seemed to reverse his position on the independence of the Moreland Commission he created and scrambled to soothe the supporters he needed from the WFP8:

As has been well documented, relations between the governor and W.F.P. activists have been chilly for some time, amid big disagreements on everything from tax policy to charter schools and, of course, campaign finance reform.

Party insiders indicate that the best chance for the governor to sway the holdouts—or at least to undercut the anti-Cuomo case—would be to deliver a real system of public financing.

If he holds to the late June timeline and delivers nothing by May 31, he’s essentially asking the party to trust him that he’ll get the measure passed a month later, and endorse him based on that pledge. That’s asking a lot, given the deep anger many party activists have toward him (based in part on the fact that he’s pledged his support for public finance previously before backing away from it)—and several sources close to the party insist that this would be a nonstarter, resulting in W.F.P. launching a challenge to the governor.

Publicly, Cuomo also alternated between using the carrot and the stick on the New York Senate's Republicans, who themselves were under pressure from conservative groups to kill any kind of statewide public financing.

The WFP state committee met on May 31st and barely endorsed Cuomo. Less than three weeks later the reform bill was dead, shot down in the state Senate:

A Democratic-sponsored amendment to reform the funding of elections in the state, attached to a Republican-sponsored bill to install lever-operated voting machines for the upcoming New York City mayoral election, was defeated 32-30. Two Democrats, Sens. Malcolm Smith, under federal indictment on charges of bribery and corruption, and Ruben Diaz, voted against the amendment.
The typical partisan finger-pointing has ensued. And that brings us up to the present day.

Cuomo got rid of a many-horned problem, collected an important endorsement, and accomplished nothing in the area of campaign finance or corrupt practices reform. Nothing. And it's not all on Cuomo; there is simply a lack of will on the part of the New York state government in general to make things harder for themselves. What is the incentive to limit campaign donations or increase competition for a seat in Congress or to shed more light on how politicians are conducting the people's business?

Corruption. Not necessarily illegal, always being explained away, but clearly corruption.

If there is a silver lining to be had in all this, it's that the work done by the Moreland Commission has been preserved by the U.S District Attorney in New York, Preet Bharara:

Members of the state Legislature have been instructed by US Attorney Preet Bharara to preserve all communications between themselves and the now-defunct Moreland Commission, according to a document obtained by The Post.

Separate letters were sent to the Senate and Assembly that say all commission-connected communications must be kept, not only from elected officials, but from their staffs as well.

The request comes a month after the commission disbanded and turned over all its records over to Bharara’s office.

Bharara apparently doesn't understand why the Moreland Commission was stopped dead in its tracks, and has not only stated that he will continue the commission's work, but will also look at Cuomo's possible role in interfering with the supposedly-independent commission's activities.

A more cynical person would have something to say about that effort and what sort of corruption sausage-making-gamesmanship would be involved at that level. We'll see how it all goes.


..........comments, notes, etc...........

0I want to make that clear up front that this diary isn't about promoting Teachout as a candidate; this diary is about what Teachout is saying as a legal scholar who has studied campaign finance and relate it to what is happening today.

1It's hard to imagine any interpretation of a law as being independent of the context in which it applies, which is what many find objectionable about the Citizens' and other decisions. No law is an island, and any claims of strict interpretation/non-activist judgment on the part of the part of the Court are questionable considering how inconsistently that principle is applied.

2Already implemented in New York City.

3Some politicians were arrested on bribery charges and others were found to have committed various ethics violations.

4As the law is written, it's possible that there is some separation of powers issue...but if the legislators were serious about helping the commission's work, they simply could broaden the Moreland law to include the state legislature as well as the executive branch while limiting the investigation to acts of public corruption. Or something like that.

5"Cuomo has accepted more than $6.2 million from LLCs in the three and a half years since he took office, according to a ProPublica analysis of state campaign finance filings. That’s more than double the amount his two predecessors, Eliot Spitzer and David Paterson, took in during their combined four years in office." (link)

6The release of the report itself was bungled; a preliminary version was released instead of one with some agreed-upon language changes had been made and the final document reviewed. There was some speculation that this was intentional in order to emphasize dissent present in the report:

The thinking is that Cuomo, hoping to wind down the commission, can try and push the Legislature to agree to many of the commission's other recommendations. He then would be able to argue that the Senate GOP wouldn't go along with public financing, an issue that even had the commission split.

Cuomo seemed to play into that today following an event at Madison Square Garden when he spoke of "political division" of issue of public finance. He said that on many other issues, "we can move forward."

One insider laughed when he saw the comments.

"He created the dissent (on the commission)," the source said. "It's laughable."

7The report was less than critical of Cuomo:
"Further, the report makes no reference to the Committee to Save New York—a pro-Cuomo group that was the leading lobby spender in 2011 and 2012, but whose donors were never disclosed—or to any potential malfeasance by the governor. Legislators have been quick to point out that he and his political affiliates have made prodigious use of some of the same “loopholes” and porous laws that the report decries. The report even lauds the current administration for its changes to the system of “member item” pork distribution, for which the governor has basically choked off funds.
8The title of the linked article reminds me of the joke saying, "when a politician says 'trust me' it really means 'fuck you'."

Originally posted to grape's musings on Fri Jun 20, 2014 at 09:37 AM PDT.

Also republished by Community Spotlight.

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Comment Preferences

  •  Tip Jar (23+ / 0-)

    "Believe nothing, no matter where you read it or who has said it, even if I have said it, unless it agrees with your own reason and your own common sense."

    by grape crush on Fri Jun 20, 2014 at 09:37:56 AM PDT

  •  As a NYS (6+ / 0-)

    resident and Public Employees Federation member, I thank you.

    "The light which puts out our sight is darkness to us." Thoreau

    by NancyWH on Fri Jun 20, 2014 at 03:25:12 PM PDT

    •  No, thank you for reading. (1+ / 0-)
      Recommended by:
      NancyWH

      I'm hoping AG Bharara - who has some cred when it comes to prosecuting corruption - is able to succeed where the state pols failed. I'm hoping that this isn't over yet.

      "Believe nothing, no matter where you read it or who has said it, even if I have said it, unless it agrees with your own reason and your own common sense."

      by grape crush on Fri Jun 20, 2014 at 06:34:22 PM PDT

      [ Parent ]

  •  Last night, I got robocalled by Astorino (4+ / 0-)
    Recommended by:
    rexxnyc, Ckntfld, hubcap, sidnora

    (Astorino is the GOP candidate for NY Governor).

    A breathless female voice told me to Google how Cuomo was evading taxes - it was in the NY Times - and then put in a plug for Astorino, who will (paraphrasing) "cut taxes in the most heavily taxed state in the country unlike Cuomo".

    I have no great love for Andrew Cuomo. He's benefitted for a long time in a Blue State from being the lesser of two evils when it comes to election time. He's a classic corporate Democrat, in the mold of Rahm Emanuel and the DC centrists who are socially liberal but economically conservative. He's fought taxing the rich - and we have a lot of them in the Empire State. He's no friend to unions. He's been oddly quiet about Chris Christie, despite the fact that he's supposedly co-equal in the Port Authority that Christie has been using as his own piggy bank and political bludgeon. He's kept the State Senate in Republican hands by letting them gerrymander their districts and ignoring the NYC sell-out Democrats who caucus with them. He's an arrogant, patronizing SOB whose number one priority is Andrew Cuomo. (I'm still amazed he pushed through the SAFE Act - and still has national ambitions despite it being a red flag to the gun nuts.)

    But I have to admit it boggles the mind to hear a GOP conservative from Westchester complaining that a Rich Guy needs to pay more in taxes…

    Strange times we live in.

    "No special skill, no standard attitude, no technology, and no organization - no matter how valuable - can safely replace thought itself."

    by xaxnar on Fri Jun 20, 2014 at 05:26:46 PM PDT

  •  Keep an eye on the Port Authority Investigation (2+ / 0-)
    Recommended by:
    Ckntfld, sidnora

    As noted in yesterday's Esquire article, SEC is investigating if some Port Authority projects were not within PA's mandate, and so PA might have committed securities fraud.

    Half the PA's Board is appointed by NY Governor.

  •  Zephyr (0+ / 0-)

    The only thing I remember about her is that Zephyr was a puma or something and she pissed off Al Giordano.

  •  This is the kind of diary we should expect here... (2+ / 0-)
    Recommended by:
    Renie57, grape crush

    unfortunately this place way too often lately has become the lowest common denominator of pandering to the "let's shoot Repub fish in the barrel" and "Aren't we Dems just so much better than the crazy Repugs?"

    Thanks for the excellent diary. I have such little faith left in elected representative government, after canvassing for Obama throughout various states in '08, only to have him appoint the same old Washington revolving door insiders as the first of many disheartening moves that ultimately drove me away.

    Zephyr having the prospect of upturning Cuomo, ala Cantor being taken by surprise, is, however, one of the most exciting possibilities in all of electoral politics at the moment.

    Typical for DK that it's got no traction with so few seeing it and commenting on it.

    The greatest heist in the history of the world happened almost 6 years ago, effecting everyone on the planet acutely, and all we can do on this "progressive" is run non-stop interference. Meanwhile this place is content to rile up the masses with the ever-latest manufactured controversy, while the deep probing academic studies and investigative reporting, such that prove over and over again that the system is entirely broken and held in a stranglehold by the 1%, are relegated to the dustbin.

    We're content to be boiling frogs here. It's truly disturbing.

    "Human history began with an act of disobedience, and it is not unlikely that it will be terminated by an act of obedience." Erich Fromm

    by thirty three and a third on Mon Jun 23, 2014 at 07:28:02 AM PDT

    •  Thanks... (0+ / 0-)

      ...for the huge praise. To me, the fault (one of a few) is that it's too damn long. It somewhat had to be to get the story out, but it's not conducive to a casual reading.

      As for LCD linkbait here, it's not as bad as it is at some major news sites that match DKos' numbers. The optimist side of me says that if a front-pager on the latest episode of the GOP's charm offensive gets people to look at the more serious stuff, then it's not as bad as we think.

      The cynic says our guys are just like everyone else, even if we're on the right side of things.

      Anyway, thanks again.

      "Believe nothing, no matter where you read it or who has said it, even if I have said it, unless it agrees with your own reason and your own common sense."

      by grape crush on Mon Jun 23, 2014 at 02:26:03 PM PDT

      [ Parent ]

  •  Another NYS resident (1+ / 0-)
    Recommended by:
    grape crush

    thanks you for posting this.  When reading in the newspapers about Cuomo shutting this down, I was totally disgusted.  Each time I always vote against my incumbent rep but unfortunately, he keeps getting elected. We need new blood in Albany.

    Bad politicians are sent to Washington by good people who don't vote.

    by Renie57 on Mon Jun 23, 2014 at 07:31:52 AM PDT

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