Albany Reform Tops City Bar’s 2015 Legislative Agenda – Debra L. Raskin

President’s Column, February 2015

In the wake of the arrest of New York Assembly Speaker Sheldon Silver on charges of bribery and corruption, and his subsequent resignation as Speaker, the calls for reforming state government are being heard from all quarters.

Earlier this week, the Governor put forth a five-point reform plan and said he would not pass a budget without it. The new Assembly Speaker, Carl Heastie, pledged to create a more open, transparent and inclusive Assembly. The Joint Commission on Public Ethics (JCOPE), which handles state ethics enforcement together with the Legislative Ethics Commission (LEC), just released a statutorily mandated report proposing several regulatory and legislative changes in order to strengthen its own investigatory and enforcement powers vis-à-vis the Executive, the Legislature and lobbyists. Finally, after repeated urging by the City Bar and others, the Governor promised the imminent appointment of the legally mandated outside panel to review the effectiveness and independence of JCOPE and the LEC, and to recommend ways to strengthen the administration and enforcement of New York’s ethics laws. This review panel was supposed to have been appointed by June 1 of last year.

Taken together, the proposed reforms cover such issues as legislative pay, campaign contribution limits, amendments to the lobbying laws, and enhanced financial disclosures for legislators; in addition, there are structural and other improvements to JCOPE and LEC that the review panel will need to address.

How will all the various strands of reform come together, if at all? We’ve certainly had these moments in the past, where a crisis leads to calls for wholesale reform, which are quickly followed by closed-door negotiations and passage of modest changes in the law. Real reform is often lacking as people simply wait for “the current environment” to change. Some will say this state of affairs is the best we can hope for given that the public is asking those in power to change the rules in a way that benefits the public, but not necessarily those in power. We don’t agree and will set our sights higher in the belief that this time the stars are aligned for true reform.

In addition to the growing chorus of public officials, we are hearing the public, the press and civic organizations call for a meaningful resolution to the decades of reform fits and starts in our political system. The City Bar is calling for the same. Led by our Government Ethics Committee, and following years of reports, public programming and legislative advocacy, we have decided to top our 2015 state legislative agenda with the following: “Support efforts to bring about meaningful ethics, rules and campaign finance reform to end Albany’s ‘pay to play’ culture and bring greater transparency to the legislative process.”

The City Bar calls on the Governor and the Legislature to undertake a multi-part reform strategy this session:  first, strengthen existing ethics laws and truly empower the agency that enforces them; second, provide greater transparency in the way the legislative process works; and, third, create a public campaign finance system for all New York elections.

Ethics Reform and JCOPE.  The City Bar has long championed the need for a single independent agency that would be principally responsible for overseeing and enforcing ethics laws for the Executive, the Legislature and lobbyists alike. In 2011, JCOPE was established.  JCOPE is not perfect, and has some significant structural flaws that impact its independence, but its creation was an important first step towards cleaning up Albany. Still, there is much more to be done, as demonstrated by JCOPE’s most recent report.  Indeed, our 2014 report “Hope for JCOPE” included a detailed list of recommendations that could be undertaken immediately – without legislation – in order to strengthen JCOPE. We also made legislative recommendations aimed at increasing JCOPE’s independence, including eliminating the political party component of the special vote requirement for enforcement decisions and adding appointments by the Chief Judge, the Attorney General and the Comptroller.

Making changes to strengthen JCOPE would signal to the public the Governor’s and the Legislature’s true commitment to ethics reform. If JCOPE is given the teeth it needs to truly and independently enforce the ethics law, that would be a vitally important step. JCOPE should be supported by all branches of government, with a structure that guarantees the needed independence and vigor and with adequate resources to guarantee actual enforcement.

In addition, the Governor must make good on his promise to appoint, jointly with the legislative leaders, the statutorily-mandated commission to review JCOPE and the LEC, which we believe should result in reform proposals beyond what has already been proposed. The appointment of the review commission thus would serve to recognize that structural improvements in the State’s enforcement agency and other changes beyond those currently being recommended are essential to building a strong ethical culture in New York State Government.

Lawyer-Legislator Disclosures.  With the arrest of Speaker Silver, questions about the source of outside income and the disclosure of client information by attorney-legislators will continue to be scrutinized by the press and the public. The City Bar reaffirms its belief that, as a general rule, there is no basis for excluding lawyers from the same level of public scrutiny to which other legislators are held.  Current disclosure laws can and should be made even stronger to ensure the public’s confidence in the governing process. Indeed, robust financial-disclosure requirements have applied to legislators, including those who are attorneys, for decades in other states. Such requirements should be guided by the following general principles:

• The type of information we believe should be disclosed would not in most cases be entitled to protection under either a claim of privilege or confidence, and in any event a system can be designed to address particular situations where the public’s interest in disclosure is outweighed by a client’s interest in secrecy.

• Exceptions could be made in the unusual circumstance where disclosure of the fact of representation itself is privileged, or where disclosure is likely to be embarrassing or detrimental to the client.

• An independent commission should be established to determine whether an exception is warranted in particular cases or whether certain information should be kept confidential in a case of extreme hardship that would not violate the public interest.

• Following current law, any expanded disclosure requirements should apply prospectively, i.e., only to new clients and new matters for existing clients as of the law’s effective date, and direct that attorney-legislators inform clients in writing of their disclosure obligations under Section 73-A.

Legislative Transparency. It is in the public’s interest to have a legislature that is transparent, deliberative and accountable to the citizens of the state. We encourage both houses to hold public discussions of their operating rules and ways those rules can be improved, in a manner that takes into account the public’s interest in having a legislature that is transparent, deliberative and accountable to the citizens of the state. We urge the adoption of new rules that will:

• Limit legislators to serving on a maximum of three committees in any given time period.
• Require committee members to be physically present to have their votes counted.
• Require that all bills be accompanied by the appropriate fiscal and issue analysis before receiving a vote and that all bills voted out of committee be accompanied by committee reports showing the work of the committee on the bill.
• Mandate a ‘mark-up’ process for all bills before they are voted out of committee.
• Explicitly provide each committee with control over its own budget.
• Institutionalize 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. 

The City Bar also supports legislation requiring that the proceedings and voting records of committee and session activities conducted by both houses be posted on their websites. It is high time for New Yorkers to be able to follow a bill’s activity online and in a comprehensive way.

Campaign Finance.  The City Bar supports public campaign financing in New York elections. We believe that, as guiding principles, campaign finance reform can best be achieved through:

• The voluntary public financing of political campaigns at levels designed to attract candidates into the public financing program.
• Stricter limits on political contributions.
• Enhanced disclosure of campaign contributions and expenditures.
• More effective enforcement of campaign financing laws.
• Curbs on transfers by legislative party committees.
• Effective regulation of “independent” expenditures on campaigns that are coordinated with a candidate.
• Stricter controls over the use of funds raised for campaigns.

It will take no less than enactment of this entire platform to restore the public’s confidence in government and its willingness to participate in the political process, and, once and for all, to put an end to the appearance of impropriety that permeates Albany and tarnishes all of its actors, even the good ones.