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?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:
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.
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.
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.The commission's second meeting was held soon after because lawmakers began pushing back against being possible targets of the group's investigations4:
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 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.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:
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.
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.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.
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.
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.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.
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.
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.7The report was less than critical of Cuomo:
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."
"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'."